Abortion and Constitutional Legislation

 

By Robert Katz

In the wake of the Supreme Court’s decision to overturn Roe v Wade and take away a woman’s constitutional right to choose to have an abortion, there’s been a lot of talk about Congress codifying abortion rights. That is not politically possible at the moment. But it is a worthy objective to anyone who believes that a woman’s constitutional entitlement to liberty should not be limited by the prejudices of an earlier time when women were third class citizens. In pursuing that objective, we have to break the habit of thinking that the Supreme Court is the final arbiter of what the Constitution means. It isn’t.

Specifically, we need to revive the tradition, subscribed to by Jefferson and Lincoln, of “departmentalism” – that each branch of the government decides constitutional questions. As President Thomas Jefferson wrote in response to Abigail Adams’ complaint about pardoning those who had been convicted under the Sedition Act of 1798 for printing “foulest falsehoods” about her husband: “You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them the right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution.”

In cases like abortion, when the Supreme Court decides that there is no constitutional right, or a restricted right, Congress must make their own determination about what the Constitution requires. So Congress is free to conclude that there is a constitutional right to abortion, and that it is not only permitted but, as a co-equal branch, constitutionally obliged to enact legislation to enforce that right.

If passage of abortion rights legislation is seen as a constitutional obligation by Congress, reform of the Senate filibuster should be viewed as a constitutional obligation as well. There is a strong argument that the filibuster itself is unconstitutional, that the framers did not want a legislative rule that would require a supermajority to pass legislation and permit a minority veto. As James Madison wrote in the Federalist No. 54: “under the proposed Constitution, the federal acts will take effect merely on the majority of votes in the federal legislature,” and where the Constitution requires a supermajority it says so explicitly, such as for impeachment of a president or approval of constitutional amendments. If the majority in Congress determined that passing national abortion legislation is not only permitted but required by the Constitution, it cannot allow a Senate rule that is at best not in the Constitution and at worst flat-out unconstitutional to stand in its way. But the constitutionality of the filibuster is unlikely to ever be tested in the courts, because the Constitution gives each house of Congress the power to make its own rules. So a ruling on the constitutionality of the filibuster can only come from the Senate itself. As departmentalist doctrine teaches, the fact that the ruling does not come from the court but from a house of Congress does not make it any less constitutional. It is a constitutional imperative that the filibuster rule be at least modified to provide that legislation designed to uphold constitutional rights can be enacted by a simple majority. Abortion rights and voting rights would be covered by such a rule.

It is possible that if abortion legislation were passed by a Democratic Congress and signed by a Democratic president, a reversal of that legislation, and even a nationwide abortion ban, could be enacted by a Republican Congress and a Republican president. But as with the repeal of the Affordable Care Act, the GOP may be unable to garner the majority in Congress to enact such a deeply unpopular piece of legislation. If they did, they would have to pay the political price.

If Congress does enact national abortion legislation, it should consider avoiding a maximalist approach. Several facts are of interest in this regard First, according to the CDC, about 93 percent of all legal abortions take place within the first 13 weeks of pregnancy and only one percent after 20 weeks. Second, according to a 2021 AP-NORC poll, although 61% of respondents approved of abortion in the first trimester, that approval rate dropped to 34% in the second trimester. Congressional abortion legislation, although a constitutional imperative, is still legislation, and as such, has to be politically wise. The legislation should take into account the public’s nuanced views on abortions and what abortion protections enjoy strong political support.

It’s time to begin wresting from the Supreme Court the exclusive prerogative about what the Constitution means, and to get the other branches of government – and the people who elect them – into the act. The Supreme Court’s abortion decision may be the catalyst that spurs that process along.

Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.

 

Subscribe to this blog by email: click here.

Comments

Post a Comment

Popular posts from this blog

Dobbs and Brown v. Board of Education: A Comparison

  As we mark the 50th anniversary of Roe v. Wade, I note that the supporters of Dobbs v. Jackson Women’s Health Organization , the decision revoking the constitutional right to an abortion, have sought to draw celebratory parallels between that decision and Brown v. Board of Education. This was the case that recognized the principle that “separate but equal” treatment of Blacks and Whites in segregated schools was incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like Brown , Dobbs overturned a foundational precedent that had been in force for decades, and according to anti-abortion proponents, established an important right – the right to fetal life -- denied by the discredited precedent. The Dobbs opinion itself referenced Brown a number of times, and Mitch McConnell said of the Dobbs decision: “The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson.”   But the differences between Brow...
Read more

Thoughts on Transgender Issues

   The treatment of transgender people is one of the most active fronts in our never-ending culture wars. Any nuance gets lost on both sides of the debate. At the risk of being caught in the cross-fire, this post attempts to formulate a sensible framework for understanding these issues.  My starting point is the affirmation of two principles. First, people should be able to express their gender identity as they wish, not in conformity with other people's ideas. That principle is rooted in the fundamental right to express oneself linked to the First Amendment protection of freedom of speech.  Second, gender dysphoria, the strong sense of belonging to a gender other than the biological gender into which one was born, is real. The causes of gender dysphoria are not well understood, but seems to have a physiological basis, at least in some  cases . From this emerges the principle that people experiencing gender dysphoria should be given “reasonable accommodation,” a...
Read more

The Supreme Court's Second Amendment Folly

  You may have seen this news item and thought it was some kind of joke. A Federal District Court in Texas, and then the Fifth Circuit Court of Appeals, ruled in   Rahimi v. United States , that a Texas law prohibiting people subject to domestic violence protective orders from owning guns was unconstitutional. Why? Because no such prohibition was recognized when the Second Amendment to the Constitution protecting the right to “keep and bear arms” was enacted back in 1789 or, in 1868, when the Fourteenth Amendment applied federal constitutional rights to the states. After all, these were the bad ol’ days when there was no such thing as a domestic violence protective order. This court decision was the kind of absurd news item worthy of the Onion. But it was no joke. The explanation for this bit of judicial nonsense is to be found in the Supreme Court’s decision last term,  New York Rifle and Pistol Association v. Bruen . Back in 2008, on a 5-4 vote, the Court decided that t...
Read more