At the Federalist Society Review, William Hodes (Indiana, emeritus): A Federal Gestational Age Abortion Ban is the Wrong (and Unconstitutional) Hill for the Pro-Life Movement to Die On. From the introduction:
In Dobbs v. Jackson Women’s Health Organization, decided in June 2022, the Supreme Court overruled Roe v. Wade (as substantially modified by Planned Parenthood of Southeastern Pa. v. Casey). After recognizing that pregnant women do not have a federal constitutional right to choose to terminate their pregnancies, the Court held that abortion laws and regulations—like other health and welfare laws and regulations—would henceforth be sustained if there was a rational basis for them.
There are weighty legal, moral, medical, and political or policy arguments both for and against abortion, at different points during the gestation period and under varying maternal and fetal circumstances. But those are not the stuff of constitutional adjudication. The point of Dobbs, as the Court repeatedly said, was to return those arguments to the political process, meaning “to the people and their elected representatives.” Moreover, the Court repeatedly made clear its assumption that those elected representatives would be state legislators.
But that did not cool the passion of politicians and activists of all stripes for a nationwide rule that would implement their policy goals. …
And from the later constitutional analysis:
The chief reason that the proposed federal law cannot survive a constitutional challenge is that Congress lacks power to punish individual abortionists for plying their trade. That crucial threshold point is rarely mentioned in public debate because most attention has been devoted to the substantive reach of the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. Backers of a federal anti-abortion law insist that there is a federal right not to be murdered in the womb, refusing to acknowledge that there is no comparable federal right not to be murdered by an abusive parent at age 2, or by a rival gang member at age 22, or by a jealous spouse at age 52.
But those arguments put the “substantive rights” cart before the “lack of congressional power” horse. Even if courts applied the caprice of Roe v. Wade in reverse, locating a right to fetal life somewhere amongst the penumbras of the Constitution, and even if courts found that unborn persons constituted a suspect class that was being subjected to invidious discrimination, that would not save Senator Graham’s Late-Term Abortions Act. Congress would still have no power to remediate the wrong of abortion.
Via Ilya Somin at Volokh Conspiracy, who has extensive comments, mostly in agreement: A Conservative Constitutional Argument Against a National Abortion Ban.
I agree as well. Here's my long-ish post from last year, when Senator Graham introduced his proposal: There’s No Federal Power to Ban Abortion (mostly addressing the commerce clause arguments).
The issue illustrates a larger point: I don't fully understand why many left-leaning commentators have been so vehement in their criticism of the Court's originalism. If the Justices heed the criticism and abandon originalism, one would not expect them to adopt a left-leaning nonoriginalism. Rather, the Justices most likely would adopt a right-leaning nonoriginalism (some say they have already, under cover of originalism, but the results will be no more palatable to the critics if done openly). Originalism, however, doesn't always lead to right-leaning results — so it has a better chance of leading the Justices to results left-leaning commentators favor in at least some cases. To put it starkly in terms of the federal abortion ban, I would not expect a Court of right-leaning nonoriginalists to invalidate the ban. But with a Court of right-leaning originalists, I think there is at least a plausible chance they would.
Posted at 6:15 PM