With Republican Sen. Lindsey Graham’s introduction on Tuesday of a ban on killing children in the womb after 15 weeks of pregnancy (with strictly enumerated exceptions), pro-abortion leftists are feigning shock and horror at Republicans’ supposed reversal from the pro-federalism arguments that accompanied the Supreme Court’s return of abortion law to state legislatures in its Dobbs v. Jackson decision this past summer.
“It was never about states’ rights,” Democrat Rep. Eric Swalwell huffed.
“Democrats have repeatedly warned voters that Republicans will pursue a national abortion ban. Lindsey Graham is proving them right,” MSNBC boasted, as if pro-life hopes to eliminate the moral stain of abortion were some big secret.
“For the hard right, this has never been about states’ rights,” said Democrat Senate Majority Leader Chuck Schumer. “No, for MAGA Republicans, this has always been about making abortion illegal everywhere.”
“These Republicans cheered abortion policy going to states. They are also sponsoring a federal ban,” headlined a Glenn Kessler article in The Washington Post. “This would seem to be a direct contradiction to the idea that states could chart their own course,” he added.
“Republicans aren’t even trying to hide it,” hand-wrung failed presidential candidate Hillary Clinton.
It’s either disingenuous, constitutionally illiterate, or both for Democrats to claim that a Republican push to ban some or all abortions at the federal level is out of line with the pro-life movement’s goal of the past 50 years. Of course we aren’t hiding it, Hillary. We’ve been calling for a stop to the barbaric practice of abortion for decades, and the partial victory that Dobbs delivered isn’t going to make us slow down.
Overturning Roe Was Never the End
It was a brainless misreading of the conservative celebration over Dobbs to think the pro-life consensus was a satisfied, hands-off-the-wheel declaration that “abortion decisions are back in the hands of the states like they should be,” as one operations director for an abortion facility put it.
Yes, we lauded Dobbs for lifting the federal ban on protecting life at the state level. And we pointed out the obvious inconsistency of pro-abortion leftists claiming this return of federalism and lawmaking authority to elected state leaders was somehow a massive abuse of the Supreme Court’s power.
The court had unjustly and unconstitutionally appointed itself the arbiter of abortion law in 1973, and the willful relinquishment of that power is clearly not judicial overreach. To claim it was is obvious fearmongering.
To Schumer’s point, the fight against abortion (much less Graham’s middle-of-the-road 15-week ban) is no radical far-right agenda item. Republicans have been advancing similar and more pro-life bills at the state level for years, far before the “MAGA” term Schumer uses so derisively was coined. The U.S. House of Representatives passed a 20-week abortion ban nearly a decade ago.
One of the only reasons Republicans weren’t passing more abortion bans sooner was the unconstitutional hurdle called Roe. Additionally, nearly every country in the European Union has more restrictive abortion laws than Graham’s proposed 15-week ban, and polls find more support than opposition for bans on abortion after 15 weeks among Americans.
A Federal Abortion Ban Is Perfectly Constitutional
It’s equally ignorant to claim that a federal protection of human life in the womb is an abuse of constitutional powers, to the level of the Supreme Court’s abusive Roe decision or otherwise. Unlike a president with no legislative authority using student loan “forgiveness” to buy votes or waging a political war on American energy or siccing the FBI on political enemies, protecting the lives of citizens is one of the responsibilities and powers of government. It’s why we have criminal laws against murder, why we have a military, and one of the rights to which we understand the 14th Amendment guarantees equal protection.
Laws protecting life do sometimes limit the actions of others — murder laws restrict the actions of murderers — but there’s no legitimate movement advocating for killers’ “freedom to choose” to kill. Unlike the Supreme Court’s abuse of power in its Roe decision, a federal abortion ban done right is perfectly constitutional and even arguably called for by the Constitution and its guaranteed liberties.
Besides the obvious disregard for the protection of human life in the Supreme Court’s Roe decision, there were two constitutional problems with that decision’s mandate that would not be present in a congressionally approved abortion ban.
First, Congress is a lawmaking entity, while the court is not. The justices in Roe arbitrarily decided to set the viability standard (about 24 weeks) as the law of the land on abortion, and barred elected representatives of the people from protecting life at earlier stages.
Yet the court is tasked solely with deciding questions of constitutionality (i.e., whether a constitutional right to abortion or right to life exists), not writing statutes (i.e., abortions are or aren’t allowed in these circumstances after this many weeks). Legislatures, on the other hand — state or national — are tasked with precisely the latter.
Second, there has never been any constitutional barrier to the government further recognizing and defending constitutionally protected freedoms, such as the right to life. (On the other hand, there is something — namely, our constitutional system — prohibiting federal infringement on those rights.)
Congress’s extension of constitutional freedoms to emancipated slaves via the 14th and 15th Amendments was not an abuse of power, but a correction of its abuse. For Congress to use its lawmaking authority to extend constitutional protections to those who always should have had them is not overreach but governance. A federal law protecting the unborn from being killed for the crime of being unwanted would do just that.
Elle Purnell is an assistant editor at The Federalist, and received her B.A. in government from Patrick Henry College with a minor in journalism. Follow her work on Twitter @_etreynolds.
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