Senate Democrats wish to eliminate almost every legislative gain made on the state level by pro-life activists in recent years. But the bill they propose as a solution is an attempt to federalize abortion and an unconstitutional attack on states' rights. It is also doomed to fail except, of course, in the goal of rousing the Democratic voting blocks of liberals and women.
First introduced in the Senate on November 2013, the Women's Health Protection Act, S.1696, would prohibit states from regulating abortion providers in a manner not "generally required in the case of medically comparable procedures." The purpose is to block and to reverse targeted regulation of abortion provider (TRAP) laws. These laws impose medically unnecessary and uniquely expensive requirements upon abortion providers and drive them out of business.
The laws are a powerful strategy. Nancy Northup, president of the Center for Reproductive Rights, claims that more than 200 TRAPs have been passed on the state level since 2011. Texas is an example of their impact. In 2011, the state had 44 abortion clinics. Today there are 21. By September, when the TRAP law entitled House Bill 2 is fully in effect, only six clinics will remain.
The situation may be lamentable or laudable, but the regulation of abortion is inescapably a state's right under the Constitution. The 10th Amendment states, "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." Nothing in the federal powers enumerated by Article I can be stretched into a grant of federal authority over abortion.
In 1973, the Supreme Court took a stab at nationalizing the issue. Based on a woman's right to privacy under the 14th Amendment, Roe v. Wade precluded an outright ban on abortion. But Roe v. Wade also affirmed states' rights. It recognized two legitimate reasons why a state could regulate abortion after the first trimester: to ensure the health of women and of the fetus. Thus, TRAP laws are almost always phrased in terms of protecting women's health. This makes them fall within the right of a state.
Nevertheless, on July 15, the Senate Judiciary Committee held hearings to explore the implications of S.1696. Representatives of both sides offered predictable testimony. The issue of states' rights was explicitly raised by Sen. Orrin HatchOrrin Grant HatchLobbying world Congress, stop holding 'Dreamers' hostage Drug prices are declining amid inflation fears MORE, (R-Utah), who is a senior member of the Judiciary panel. Hatch commented, "I'm in my 38th year here in the United States Senate and on this committee, and I don't recall Congress ever passing a law that prohibited states from enacting an entire category of laws simply because Congress says so. Why is abortion so unique that Congress has this authority in this area, but not in any other?" Hatch concluded, "This law ... would not regulate abortion, it would regulate the states, telling them what laws they may and may not pass."
The comment is especially apt as S.1696 is detailed on which laws the states would be prohibited from passing. For example, a state could not lawfully adopt "a requirement or limitation that prohibits or restricts medical training for abortion procedures, other than one generally applicable to medically comparable procedures." The bill also reaches into state court systems by requiring "courts to liberally construe the provisions of this Act." One aspect of the act would certainly end up in court. The term "medically comparable procedures" is pivotal to the act's enforcement and appears four times in the text. Although key words such as "abortion" are defined in Section 3 of the act, no definition of "medically comparable procedures" is given. The term is open to interpretation by courts that are instructed to be "liberal."
S.1696 itself would not survive a court challenge. Nor will it need to. Senate Democrats are well aware that the act cannot pass through the Republican-dominated House.
Nevertheless, Senate Democrats are likely to fast-track this bill to nowhere. Sen. Mark UdallMark Emery UdallKennedy apologizes for calling Haaland a 'whack job' OVERNIGHT ENERGY: Haaland courts moderates during tense confirmation hearing | GOP's Westerman looks to take on Democrats on climate change | White House urges passage of House public lands package Udalls: Haaland criticism motivated 'by something other than her record' MORE (D-Colo.) is not on the Judiciary Committee, but he epitomizes why the political theater will play on. Up for reelection in November, Udall has focused his campaign upon his opponent's "war on women." Udall castigates him for having supported a personhood amendment that applies the status of "person" to human beings from the start of biological development.
The real point of S.1696 is to stir up anger because angry people vote. And nothing sparks the rage of America quite as much as abortion.
McElroy is a research fellow at the Independent Institute.