I watched most of Joe Biden’s Town Hall on MSNBC last night, and thought he did fine, except for one moment that made me cringe, like it does every time I hear a Democrat say that if the Supreme Court takes the unprecedented step of rolling back or taking away a woman’s right to choose to terminate her pregnancy, Congress can simply
pass legislation making Roe the law of the land.
No, it can’t.
I explained this at length in a diary last year called “Look to the States, Not Congress, to Protect Abortion Rights if Roe Is Overturned.” Most people understand that overturning Roe will throw the issue of whether or not to criminalize abortion — i.e., to force pregnant women and girls to remain pregnant against their will, against medical advice, regardless of the risk, under penalty of law, and to devote public resources to policing pregnancies and enforcing that requirement — back to the states. Some states will do that, some won’t.
What can’t happen is (a.) Congress makes terminating a pregnancy a federal crime irrespective of whether it crosses state lines; or (b.) Congress passes a federal law declaring that all American women shall have the right to choose to terminate a pregnancy. Congress doesn’t have the power to do either of those things.
Now, that being said, there are things that Congress can do to protect women’s reproductive rights, as outlined in the above-linked diary from last year:
- Repeal the Hyde Amendment (obviously);
- Repeal RFRA, thus nullifying the Hobby Lobby decision;
- With the Hyde Amendment and RFRA repealed, let other legal and regulatory dominoes fall vis-à-vis federal support for reproductive health care;
- Prohibit the prosecution of any person for any abortion-related State crime in any federal court (Congress has the power to limit the federal courts’ subject-matter jurisdiction);
- Prohibit the Justice Department from assisting the States in investigating or prosecuting any abortion-related State crime;
- Create “safe havens” for women who live in regressive States to have abortions in special federal jurisdictions such as military bases (this one is trickier; States generally cannot prosecute crimes that occur outside their jurisdictions, and laws like Georgia’s that prohibit leaving the State to obtain an abortion are probably unconstitutional as both usurping federal jurisdiction over inter-state travel and interfering with the right to travel);
- Propose, pass, and send to the States for ratification, a Constitutional Amendment guaranteeing a woman’s right to choose.
That’s not nothing. But it’s also not “legislation making Roe the law of the land.”
It’s also been suggested that Congress could pass “pre-clearance” requirements akin to the Voting Rights Act, under § 5 of the 14th Amendment which permits Congress to enact so-called “prophylactic” legislation to address constitutional rights (viz., due process and equal protection) violations by states. The problem with that is, overturning Roe would mean that women no longer have a constitutional right to choose to terminate a pregnancy, so state action outlawing such conduct would not violate any constitutional right.
It has, of course, also been suggested that the solution to Roe being overturned is to pack the Court; to add seats and Justices who will tip the balance back the other way. Court-packing is not the panacea that everyone seems to think it is, and opens up whole other cans of worms, which is one reason why Biden won’t commit to doing it. It therefore bears repeating that the Court has never, in its history, rolled back or taken away substantive civil rights under the 14th Amendment’s due process clause that it has previously recognized. Overturning Roe would be the first time in history that the SCOTUS effectively declared to any group of Americans, or to all Americans, that “You no longer have a right to [X], and the State can now punish you for it.”
If Biden wants to talk about court-packing, he should start with that. Remind Americans that the 14th Amendment was designed to prevent, root out and eliminate oppression and injustice by the states; the Court’s job is to make sure the states abide by that. Up to now the Court has done its job, putting an end to oppressive and unjust state laws.1 If the Court now decides — again, for the first time ever — that it’s time to bring back oppression and injustice in the states,2 then we need to seriously consider expanding the Court to put it back on its proper course.
I would urge everyone to read last year’s diary for a detailed explanation of why Congress can’t simply pass legislation declaring the existence of individual rights throughout the United States. And I would urge the Biden campaign not to say that it can.