Congress Does Have Considerable Power to Regulate Abortion
Andrew Hyman

In response to this interesting blog post by Mike Ramsey, I  agree that the Commerce Clause does not provide a solid originalist basis for congressional regulation of abortion, but in my view other clauses do.  I use the word "regulate" broadly so as to include deregulation, which of course is how the word is used in the Constitution.   Congress has considerable authority to counteract the regulations that the U.S.Supreme Court has imposed against the states.

In the District of Columbia and all other areas under exclusive federal jurisdiction, the plenary congressional power to regulate is obvious. Within the states, Congress can rein in the federal courts, just as Congress can rein in its own role under the Commerce Clause.  Before detailing how Congress could do this, I would like to mention Chris Green’s recent blog post about this subject.  Chris says: “The debates leading to the Civil Rights Act of 1871 make clear … that Congress may supply ‘protection of the laws’ if states have not supplied it.”  I disagree with relying so heavily upon post-enactment behavior, and (for reasons explained here) do not believe that the authors of the Fourteenth Amendment, which took effect in 1868, generally understood that the Equal Protection Clause would go beyond an equality requirement.

 

Some people have suggested that Congress should call a fetus a "person" under the Fourteenth Amendment, and thus invoke the Equal Protection Clause or the Due Process Clause to affirmatively protect the unborn against contrary state legislation, but that is not what I have in mind.  Using the DP Clause would be problematic because of the illegitimacy of substantive due process.  And using the EP Clause would be problematic because a fetus (even if a person) is not similarly situated to someone who has been born.

What Congress could say, for example, is that current medical knowledge is inadequate to determine exactly when a right to life begins or when it eclipses a woman's freedom to end a pregnancy, and therefore all federal officials are instructed, for purposes of interpreting and carrying out their duties under all federal statutes and regulations, that any human being who has developed past the embryonic stage of development is entitled to enjoy a right to life except in the most unusual extenuating circumstances supported by credible evidence (there's no need for Congress to get more specific than that).  Congress could accomplish this, and allow states to adopt a similar policy, by saying pursuant to the Exceptions Clause and Section Five of the Fourteenth Amendment that the jurisdiction of the federal courts does not extend to reducing any such entitlement on constitutional grounds, regardless of whether it is a state-conferred entitlement enforceable against private parties, or a federally-conferred entitlement only enforceable against public officials.  Jurisdiction aside, Congress could require that the federal executive branch not enforce any such purported reduction without identifying a clear basis for it in the Constitution and federal laws.

This way, in each state, the people, their legislators, their judges, and their governor would collectively have greater freedom to exercise their best judgment on this difficult matter.  It is hard for me to see how this kind of federal statute would be outside the power of Congress, under an originalist view.  While the power of Congress in this area is not plenary, it is not miniscule either, though it seems that Congress has not yet gone beyond miniscule steps.  There are other techniques Congress could use too, such as requiring federal courts to leave state abortion regulations alone unless a supermajority of the Supreme Court (e.g. seven judges out of nine) find a clear conflict with the Constitution.