Abortion and Constitutional Legislation
By Robert Katz
In the wake of the Supreme Court’s decision to overturn Roe v Wade and take away a woman’s constitutional right to choose to have an abortion, there’s been a lot of talk about Congress codifying abortion rights. That is not politically possible at the moment. But it is a worthy objective to anyone who believes that a woman’s constitutional entitlement to liberty should not be limited by the prejudices of an earlier time when women were third class citizens. In pursuing that objective, we have to break the habit of thinking that the Supreme Court is the final arbiter of what the Constitution means. It isn’t.
Specifically, we need to revive the tradition, subscribed to by Jefferson and Lincoln, of “departmentalism” – that each branch of the government decides constitutional questions. As President Thomas Jefferson wrote in response to Abigail Adams’ complaint about pardoning those who had been convicted under the Sedition Act of 1798 for printing “foulest falsehoods” about her husband: “You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them the right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution.”
In cases like abortion, when the Supreme Court decides that there is no constitutional right, or a restricted right, Congress must make their own determination about what the Constitution requires. So Congress is free to conclude that there is a constitutional right to abortion, and that it is not only permitted but, as a co-equal branch, constitutionally obliged to enact legislation to enforce that right.
If passage of abortion rights legislation is seen as a constitutional obligation by Congress, reform of the Senate filibuster should be viewed as a constitutional obligation as well. There is a strong argument that the filibuster itself is unconstitutional, that the framers did not want a legislative rule that would require a supermajority to pass legislation and permit a minority veto. As James Madison wrote in the Federalist No. 54: “under the proposed Constitution, the federal acts will take effect merely on the majority of votes in the federal legislature,” and where the Constitution requires a supermajority it says so explicitly, such as for impeachment of a president or approval of constitutional amendments. If the majority in Congress determined that passing national abortion legislation is not only permitted but required by the Constitution, it cannot allow a Senate rule that is at best not in the Constitution and at worst flat-out unconstitutional to stand in its way. But the constitutionality of the filibuster is unlikely to ever be tested in the courts, because the Constitution gives each house of Congress the power to make its own rules. So a ruling on the constitutionality of the filibuster can only come from the Senate itself. As departmentalist doctrine teaches, the fact that the ruling does not come from the court but from a house of Congress does not make it any less constitutional. It is a constitutional imperative that the filibuster rule be at least modified to provide that legislation designed to uphold constitutional rights can be enacted by a simple majority. Abortion rights and voting rights would be covered by such a rule.
It is possible that if abortion legislation were passed by a Democratic Congress and signed by a Democratic president, a reversal of that legislation, and even a nationwide abortion ban, could be enacted by a Republican Congress and a Republican president. But as with the repeal of the Affordable Care Act, the GOP may be unable to garner the majority in Congress to enact such a deeply unpopular piece of legislation. If they did, they would have to pay the political price.
If Congress does enact national abortion legislation, it should consider avoiding a maximalist approach. Several facts are of interest in this regard First, according to the CDC, about 93 percent of all legal abortions take place within the first 13 weeks of pregnancy and only one percent after 20 weeks. Second, according to a 2021 AP-NORC poll, although 61% of respondents approved of abortion in the first trimester, that approval rate dropped to 34% in the second trimester. Congressional abortion legislation, although a constitutional imperative, is still legislation, and as such, has to be politically wise. The legislation should take into account the public’s nuanced views on abortions and what abortion protections enjoy strong political support.
It’s time to begin wresting from the Supreme Court the exclusive prerogative about what the Constitution means, and to get the other branches of government – and the people who elect them – into the act. The Supreme Court’s abortion decision may be the catalyst that spurs that process along.
Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.
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