Abortion and Last Night's GOP Debate

The overturning of Roe v. Wade returned the abortion question to the states. That means that each state is empowered to enact its own laws regulating abortion. Some states will permit abortion up to the moment of birth. Others will not. Different states, different laws.

What then are we to make of Mike Pence and Senator Tim Scott and their  call for a Federal law that bans abortion (apart from the usual exceptions) during the last 15 weeks of pregnancy? 

Am I missing something? (When I write about political and legal issues, I write as a concerned citizen and not as an expert in these areas.) It strikes me as obvious that if the abortion issue is for the states to decide, then there cannot be any federal abortion laws. 

Nikki Haley and Pence danced around this issue but their heated tango  was irrelevant blather. Pence insisted that the abortion question was a moral one. No doubt, but that it is not to the point. Haley irrelevantly asserted that that an anti-abortion majority has not been seen in the Senate in “over 100 years.” and “Don’t make women feel like they have to decide on this issue when you know we don’t have 60 Senate votes.” 

The precise question is: How is a federal abortion restriction consistent with the states' right to decide the abortion laws? ND Governor Doug Burgum alone seemed to understand the problem, but his fleeting remark failed to set it forth clearly.

The answer to the precise question is that the federal restriction is not consistent with states' rights. It is unconstitutional.

This is not a very satisfying answer given that abortion is a moral abomination. (See my Abortion category for arguments.) But arguments, no matter how good, cut no ice in the teeth of our concupiscence. This is explained in my Substack article, Abortion and the Wages of Concupiscence Unrestrained.

Comments

[Gary Huber]

Could the Civil Rights Act be invoked to protect the unborn? Perhaps Congress would have to define what is a human being and a citizen. Not that it will happen in the next decade.

[Vito B. Caiati]

“The precise question is: How is a federal abortion restriction consistent with the states' right to decide the abortion laws?”

Like you, Bill, I am no expert in connotational law, but I believe that such a restriction would not be consistent with the right of the states to determine the law on this matter. The confusion of Pence and Scott appears to arise from their understanding of the wording of the Supreme Court in the Dobbs Case, in which the majority held: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives” (https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf). Specifically, they seem to interpret the phrase “returned to the people and their elected representatives” as one that permits the federal legislature, the Congress, to establish a national ban on abortion during the last 15 weeks of pregnancy, save for unusual cases. However, I think that such an interpretation contradicts the Tenth Amendment, which decrees that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Of the enumerated or expressed powers granted to the United States, i.e., the federal government, none include that of regulating abortion, nor is such regulation proscribed to the states; therefore, such power resides with the latter. Moreover, an attempt to utilize the Fourteenth Amendment, which protects the rights of individuals granted by the Constitution, would not permit federal intervention, since the Court found in Dobbs that it does not grant such a right.

[Vito B. Caiati]

Spell checker error in first line that I failed to catch: "connotational" should obviously be "constitutional."

[BV]

Vito's comment above is a model of how a good comment is constructed.

Note that he deals directly with the question I raised. He does not go off on a tangent, or change the subject to a topic that interests him but is not germane to my entry. He engages what I said and he let's me know whether he agrees or disagrees. As it is, he agrees.

He then supplements what I said in two ways. He points out the relevance of the Tenth Amendment to the question I posed. That had occurred to me, but I failed to mention it. Governor Burgum alluded to it near the end of that segment of the debate when her whipped out his pocket Constitution.

But what I found most useful in Vito's comment is his explanation of the confusion of Pence and Scott. Vito: >>Specifically, they seem to interpret the phrase “returned to the people and their elected representatives” as one that permits the federal legislature, the Congress, to establish a national ban on abortion during the last 15 weeks of pregnancy, save for unusual cases.<<

So the mistake that Pence and Scott made was to confuse the people of the U.S. with the people of a particular state. Here is 10A again: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Now I don't think one has to be a Constitutional scholar to know what that means. "The people" refers to the people of a given state, such as North Dakota or Massachusetts, not to all the people of the U.S.