HOUSE PASSES 20-WEEK ABORTION BILL: The vote was 242-184, and along party lines (4 Democrats supported the bill; 4 Republicans opposed it). The bill would ban abortions after 20 weeks.
I am with my fellow constitutional law professors, Glenn (Mr. InstaP himself) and Jonathan Adler on this one: I don’t see a principled constitutional basis for Congress to regulate abortions. It is a matter of state power–for state-by-state legislative consideration–and not within Congress’s power to regulate interstate commerce.
For a Republican Congress to embrace such an expansive interpretation of the Commerce Clause is more than a bit ironic (and unprincipled), especially given Republicans’ more parsimonious view of the Clause during the Obamacare litigation. Why jettison this basic understanding of constitutional structure/federalism merely to score a cheap political victory?
The goal of restricting abortions to 20 weeks’ gestation–which I support and is backed by increasing science on viability–can be accomplished within state legislatures. There are some interesting and complicated legal questions about the constitutionality of a 20-week cutoff versus a 22-week cutoff due to the current science on viability, but there is little doubt that states have the constitutional wiggle room to ban abortions sometime around 22 weeks (the point of fetal viability).
But for Congress to impose a top-down, “one size fits all” cutoff for abortion flies in the face of conservative thought that Roe v. Wade itself was an inappropriate federalization of abortion that pretermitted democratic debate and state variation on such a contentious moral issue.
Note to Republicans in Congress: The ends do not justify the means–rationale is out of the progressives’ playbook.