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Does The Constitution Allow Congress To Restrict Abortion?


Congress may pass a 20 week ban on abortion. Is it unconstitutional for them to do so? Glenn Reynolds thinks so. He’s wrong.


Glenn Reynolds writes at USA Today on what he believes to be a Republican hypocrisy on limited government: namely, that the House is expected to soon take up a 20 week abortion ban.

“One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well— Americans are much more supportive of early abortions than late-term abortions — and would still leave the United States with more-liberal abortion laws than nearly all of Europe. Even so, the Republicans need to be asking themselves — and the Democrats need to be asking them, too — where, exactly, Congress gets the power to limit abortions to 20 weeks?”

Reynolds’ argument seems very strained to me. I’m very confused by his suggestion that this is not a constitutional step, because isn’t this just a modification of due process under the 14th Amendment? (I will concede that I am of the mind, along with a small group of politicians and scholars, that Congress could constitutionally prohibit all abortion under the 14th.) There doesn’t seem to me to be a commerce clause justification here, but something much more basic: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And Article 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

Indeed, Rep. Trent Franks (the author of the Pain-Capable bill) basically claims all of these powers as the basis for justifying Congress’s authority in passing the bill. That is from the Congressional Record’s Constitutional Authority Statement that Representatives must submit with every bill they introduce:

By Mr. FRANKS of Arizona:
H.R. 36.
Congress has the power to enact this legislation pursuant
to the following:
Congress has authority to extend protection to pain-capable
unborn children under the Supreme Court’s Commerce Clause
precedents and under the Constitution’s grants of powers to
Congress under the Equal Protection, Due Process, and
Enforcement Clauses of the Fourteenth Amendment.

Note that Franks properly says “precedents” in reference to the Commerce Clause (i.e., not an originalist interpretation, but the current SCOTUS understanding) and that he relies on the 14th explicitly.

Perhaps the issue is with a disagreement over the definition of “born”, and whether or not abortion amounts to depriving a person – a citizen – of life. But on this count, Reynolds would have an increasingly weak argument as well, to the degree the 20 week ban on abortion now matches up with the point of viability:

“According to the Journal, it is now clear that babies born at 22 or 23 weeks into pregnancy have a decent chance to survive if given treatment. Those born at 23 weeks are even more likely to live with half doing so without significant problems. This is good news for families but as even the New York Times tacitly admitted in its story about the report, it is bad news for those on the left who have been fighting efforts in state legislatures to ban late term abortions. Given the now incontrovertible fact that babies who are now still being legally aborted could live outside of the womb, the moral rationale for opposing late term bans has disappeared.”

It seems rather Krugmanesque to say that because Republicans favor government in some cases, such as in prohibiting the destruction of a human life, that they are therefore hypocrites. Government in the American system has a specific purpose, as set forth in the creed of the Declaration of Independence: to secure liberty, first among them being life. Surely Abraham Lincoln would recognize a federal power, or at least a federal imperative, to suppress the killing of children, just as he did against human enslavement. It’s too bad Reynolds doesn’t agree with that – particularly given that he’s a law professor.

Update: Jonathan Adler disagrees here.