Advantages of Federal Legislation on Abortion, Part 2

[This is Part 2 of 2; in the first part, I argued that a future Republican Congress would be likely to pass legislation banning or greatly restricting abortions nationwide. If you haven’t read that yet, start there.]

Democrats Should Pass a Federal Law Protecting Abortion Despite the Possibility the Supreme Court Would Invalidate It

While some people argue that a Supreme Court willing to overturn Roe v. Wade would also be willing to throw out a federal law protecting abortion rights, Democrats in Congress should protect the right to abortion anyway. The Supreme Court might accept a federal law protecting abortion rights as within the constitutional powers of Congress. But even if it did not, passing a federal law and then having it invalidated by the Court would be no worse from a policy perspective than not passing the law at all, could set a useful precedent if a subsequent Republican Congress attempted to ban or restrict abortion nationwide, and would provide political advantages.

Congress has broad authority to pass laws regulating interstate commerce. Since the New Deal, the Supreme Court has upheld numerous laws regulating conduct that has at most a tenuous connection to interstate commerce. State abortion laws affect where people are willing to live and work, where businesses choose to base their operations, and other major aspects of interstate commerce. Moreover, there already exists a robust interstate market for abortion services — thousands of people travel to other states to receive abortions, primarily traveling from states with significant restrictions to Illinois and New York — and that market would explode in size if Roe is overturned and abortion becomes illegal in some states while legal in other states. Because the local laws on abortion create much of the demand for the interstate market, under existing Commerce Clause jurisprudence, a federal law regulating abortion nationwide would be clearly constitutional.

The Supreme Court might nonetheless strike down a federal law protecting a right to abortion. Over the last 30 or so years, the Supreme Court has been increasingly willing to declare that laws whose primary purpose and effect is not economic go beyond the reach of the Commerce Clause. In each case, the Supreme Court’s decisions have touched on hot button issues. A majority of the Court that is heavily motivated by a deep belief that abortion is wrong might stretch to invalidate a federal law protecting access to abortions. Justice Alito’s draft opinion ironically criticizes Roe for warping and distorting other areas of the law as the Court makes decisions differently because they touch on abortion. He’s correct that that happens, but the far more notable examples are anti-abortion judges warping their interpretation of the law because of that — most notably with the frankly absurd decisions refusing to strike down the Texas “heartbeat” anti-abortion law. Something similar could happen with regard to a federal abortion rights law.

But even if it did, from a policy perspective, that would set useful precedent. I have already argued that a future Republican Congress would be likely to pass laws restricting abortion nationwide. If those laws are reviewed by the Supreme Court without any prior precedent, they would be easily upheld as within Congress’s Commerce Clause authority. However, if the Court has previously struck down a law protecting reproductive rights, they would likely face a precedent that emphasizes how this area of law is uniquely a matter of state, not federal, concern, and how the effects on interstate commerce are minor and not the primary focus of the legislation. Under that context, the Court would feel pressure to maintain intellectual consistency.

Courts are political institutions that respond to justices’ policy preferences, but they are not purely political institutions. Justices want to believe about themselves that they are playing the game by the rules and applying the law in principled, consistent ways. Because of that, they reasonably often make compromises between their personal preferences and the outcome they think is legally correct. The Court might act utterly hypocritically, drawing specious distinctions between a federal law protecting abortion rights and a federal law restricting them — but they would feel pressure to maintain consistency, and it might make all the difference. So if the Court is faced with first a federal law protecting reproductive rights, and then a subsequent law restricting them, it might uphold both laws — which would be clearly correct on Commerce Clause grounds, absent Roe’s specific protections — or it might strike them both down. Conversely, if the first law of this type to come before the Court were a federal law restricting reproductive rights, it would surely be upheld.

At the risk of seemingly a meme, this becomes a matter of basic game theory. Presenting the Court with a federal law protecting reproductive rights dominates not doing so in terms of likely policy outcomes. The Court might uphold both laws — better than an outcome where there is no law protecting reproductive rights and then the Court upholds a law limiting abortion nationwide. The Court might invalidate both laws — again, better than the outcome where there is no law protecting reproductive rights and then the Court is presented with a law limiting abortion nationwide and upholds it. And the Court might engage in sophistry and deception, striking down a law protecting abortion rights and then upholding one restricting them. But that scenario is no worse from a policy perspective than the scenario where the Court upholds a law restricting abortion after having never been presented with a law protecting abortion rights, and is made less likely by a prior decision on federal authority to regulate abortion.

The only counter argument is positing that the Court might uphold a law restricting abortion, and then feel bound by that precedent and uphold a subsequent law protecting reproductive rights. That pattern is possible, but it’s both extremely contingent, and it requires first accepting a future path where for some time abortion is greatly restricted nationwide. It would be better far to fight the battles now, on our terms, than to try to play n-dimensional chess with what will happen after the Republicans capture a federal trifecta and then the Democrats capture a subsequent trifecta, all with the Court still maintaining approximately its current ideological mix.

Additionally, passing a law protecting abortion rights and fighting with the Court over its constitutionality would serve major political goals for the Democratic Party. It would energize pro-choice voters and underscore the importance of voting for Democrats to protect reproductive rights. It would also increase awareness of just how anti-democratic the Court has become, which might lay the groundwork for badly needed systemic reform. So while a federal law protecting abortion rights might be struck down by the Court, passing it simply puts pro-choice Democrats in a better position, on both policy outcomes and political situation, than failing to pass it, regardless of how the Court then responds.

Democratic Senators Should Break the Filibuster to Pass Reproductive Rights Legislation

The Democratic Senate majority, when combined with the handful of somewhat pro-choice Republicans in the Senate, has a majority, but is not close to having the 60 votes necessary to call for cloture. Of course, a simple majority of the Senate has the power to end the unconstitutional, anti-democratic filibuster process. The Democrats in the Senate should do everything in their power to do so.

While two Democratic Senators are, to a greater or lesser degree, anti-abortion, their votes should be balanced by the three at least somewhat pro-choice Republican Senators. But there is simply no hope, given the current composition of the Senate, of mustering 60 votes to protect reproductive rights. Therefore, the only path forward would be to end the filibuster.

The filibuster is bad in general. It gives the minority in an already undemocratic body even more control. It also contributes to government disfunction and eliminates a need and opportunity to build cross-party compromises, because nothing even vaguely controversial can pass the Senate if it’s subject to the filibuster. Moderates have no incentive to work with the other party to reach good policy, because they still won’t get to 60 votes most of the time. And with the legislature largely unable to act, more and more political power relocates to the courts and to the executive branch — a process that undercuts democracy and threatens all of our liberty. So if reproductive rights are the hammer that breaks the filibuster, that would be a positive outcome.

Breaking the filibuster would also not functionally create a negative precedent that would come back to harm reproductive rights in the future. Unlike the Supreme Court, the Senate does not have an institutional commitment to precedent in a meaningful sense. Compare Sen. McConnell’s utterly unprincipled shift from asserting that Justice Scalia’s death in February of an election year was too close to the election to consider confirming a new nominee — not even giving Garland a hearing and a vote — to ramming through Justice Barrett’s nomination 37 days before the presidential election after Justice Ginsburg died in September of an election year. Sen. McConnell is dedicated to the raw exercise of power. He already eliminated the filibuster for judicial nominees, because that increased Republican power when they had a majority but not a supermajority. There is no reason to believe that whether the Democrats have honored the current rules would influence whether Sen. McConnell would feel an obligation to honor them in the future, and there is likewise no evidence that his caucus meaningfully constrains him. There is thus no real harm to breaking (or trying to break) the filibuster to pass a federal law protecting abortion rights.

Realistically, it’s unlikely that the Democrats would be able to muster 50 votes to break the filibuster in the current Senate. Sen. Manchin would be expected to both oppose breaking the filibuster and to oppose the underlying bill, and Sen. Sinema is likely to continue to oppose breaking the filibuster for inscrutable reasons. Sen. Collins has already said she won’t vote for the Democrats’ version of a reproductive liberty bill, although she’s purportedly working on her own version with Sen. Murkowski. In any event, it’s hard to imagine that either of them would vote, while members of a Republican minority, to break the filibuster. Nonetheless, there is a value to trying and failing. It shows the pro-choice activists that the Democrats in the Senate are trying hard. It makes it clear that picking up even one or two more seats might make all the difference. And it forces the pro-choice Republicans to either put up or shut up: to go on the record as directly selling out reproductive rights for their partisan affiliation or to break with their party to actually do something. That, in turn, offers the possibility of political gains when Sen. Collins is back up for election before a heavily pro-choice Maine electorate in 2026.

Pushing as hard as possible to pass reproductive liberty legislation is a win-win for the Democrats. It’s the right thing to do, and it scores them useful political points that help them win future elections. It also underlines the brokenness of the current system in a way that might help with future reform.

Something Is Better Than Nothing

I want to conclude by arguing that, after pushing as hard as they can for sweeping reproductive rights legislation, the Democrats in Congress should try to compromise on anything they can get through. Sen. Collins says that she thinks the current draft impinges too much on the interests of Catholic hospitals. Fine. Vote on it next week, force her to vote no on the record, and then when she brings forward her bill, vote for that, too. Hold a vote to end the filibuster to pass the Collins-Murkowski reproductive freedom bill, whatever it ends up being. Force them to vote against their own bill, or to vote to break the filibuster and actually pass it.

A substantial supermajority of Americans are pro-choice, but there are bigger issues (are elective abortions legal at all? are abortions legal after the sixth week, when some women will first realize that they are pregnant?) and smaller issues (are elective abortions legal after the 15th week, during a time period in which only 12% of all abortions take place, many of which would be covered by medical necessity exceptions?) Many Americans are pro-choice on the bigger issues, but not supportive on the smaller issues. But the bigger issues matter much more. So, if the Senate Democrats can’t muster the votes to address the smaller issues, but can for the bigger issues, it’s still worth getting something. A chunk of a broken cookie isn’t as nice as the full cookie, but it’s far better than nothing.

Any federal law protecting abortion rights would only provide a floor, not a ceiling. Legislation stating that no state can ban abortion before the 15th week or that no state can give individuals the power to sue over abortion or any of the other limited steps that might be taken wouldn’t prevent the Northeast states, Illinois, and the West Coast from permitting abortions under other circumstances. But they would make a huge difference in Texas and Oklahoma and Ohio. And they would provide even more straightforward political benefits. Push for what we really want, force opponents to take the political hit for opposing it, and then pass whatever we can get, before working to expand and strengthen the working majority for next time.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store