The Constitution, Congress and Abortion
Policy debates about abortion occur within a complex constitutional and legal framework largely created by the Supreme Court. In our federal system, States have traditionally been responsible for protecting individuals against acts of violence by passing and enforcing laws against assault and murder. In Roe v. Wade and its progeny, however, the Supreme Court greatly limited the authority of States to meaningfully regulate or limit violence against unborn human beings in an abortion procedure. In response, the United States Congress has in recent years passed national legislation—such as the Partial-Birth Abortion Ban Act of 2003—that takes modest first steps toward rolling back the abortion license in the United States. In 2015, the House of Representatives passed the Pain-Capable Unborn Child Protection Act (PCUCPA), which proposed a federal ban on abortions after twenty weeks gestation, with exceptions for physically life-threatening conditions, rape, and incest with a minor. Although the PCUCPA did not pass in the Senate, the 115th Congress will likely continue to consider new national restrictions on abortion.
Debate about national congressional regulation of abortion presents an opportunity to think, on the level of first principles, about the source of Congress’ authority to enact such legislation in the first place. Although there is room for legislators to debate the most prudent course of action in light of established norms and legal precedents, the Fourteenth Amendment’s Equal Protection Clause provides the most historically plausible constitutional grant of authority for Congress to work toward legally protecting unborn children through national legislation. The issue of congressional power to legislate against abortion raises important and complex historical and theoretical questions at the very heart of the U.S. constitutional tradition, beginning with the bedrock principles of limited government, federalism, and the separation of powers.
In the following sections, I briefly introduce modern jurisprudence on abortion before evaluating three enumerated Congressional powers that might plausibly support Congressional authority to regulate abortion. Within this discussion, I engage debates about whether the original meaning of personhood includes the unborn, and whether Congress has authority to interpret the Constitution independent of Supreme Court precedents. I conclude that policy makers must make prudential judgments in a complex constitutional and legal landscape, but that the Equal Protection Clause of the Fourteenth Amendment provides the most plausible grant of authority for Congress to regulate abortion.
