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Insubstantial Due Process

The landmark decision released by the Supreme Court last week in Dobbs v. Jackson Women’s Health corrects a moral and constitutional travesty. The Court concluded in its opinion: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” For decades, even prominent legal scholars on the left have admitted that Roe is bad law. The falsehood that abortion is a right enshrined in the Constitution has finally come to an end with Dobbs.

But this is not the end of the conversation about the legal reasoning in Dobbs. As Justice Thomas says in his concurring opinion, the Court has correctly applied the rules of its substantive due process jurisprudence to find there is no substantive due process right to abortion. He explains that the Court has long analyzed whether a substantive-due-process right exists under the Fourteenth Amendment by determining whether the right is “deeply rooted in this Nation’s history and tradition [or] implicit in the concept of ordered liberty.” The Dobbs Court, he says, is correct that there was no history or tradition in America at the time the Fourteenth Amendment was ratified that justifies a right to abortion. But, Justice Thomas goes on, the Court should not be using that substantive-due-process analysis at all.

For decades, the Court has been using the Due Process Clause of the Fourteenth Amendment to declare fundamental rights that are not explicitly written in the Constitution. The relevant clause requires that no state shall “deprive any person of life, liberty, or property, without due process of law.” Looking at the history of due-process rights, Justice Thomas points out that due process means simply that a certain process is due to citizens before their rights to life, liberty, or property can be taken away. For example, if the government intends to deprive a criminal of life or liberty, or intends to confiscate a person’s property under a certain law, the person is constitutionally entitled to due process. This usually means reasonable notice of the government’s intention, and a fair hearing on the merits of the government’s claim. The Courts have turned “due process” into something far beyond the process that a person is due.

Why does this matter? First of all, proponents of originalist legal theory want to interpret the text correctly, period. The goal is not simply to get “the right outcome,” but to make sure judges are doing their work properly and interpreting the law before them according to its meaning. By accepting the substantive-due-process framework created through many decades of precedent, the majority opinion in Dobbs is accepting an incorrect reading of the Fourteenth Amendment. As a matter of principle, judges should not do that. One can argue that precedent has its place and that it is not expedient to unwind a long-established and well-used precedent. But if one is committed to the idea that judges must be restrained to interpret the law as written without weighing the potential practical effects of their judgments, then Justice Thomas is correct and the concept of substantive due process should be eliminated from American law.

Besides the fact that it lacks a basis in the Constitution, Justice Thomas points to three reasons substantive due process is “particularly dangerous.” First, the doctrine exalts judges above the democratically elected branches of government by allowing judges to use the Due Process Clause to divine new rights rather than for the limited task of ensuring the people are given due process (notice and a fair hearing). Abortion is only one of many “rights” the Supreme Court has found hidden within the Due Process Clause. Second, the creation of new fundamental rights complicates and distorts other areas of constitutional law. For example, once a new fundamental right is found for one class of persons, the Court must determine under the Equal Protection Clause if other classes of persons are entitled to the right. Third, the creation of rights not found explicitly in the Constitution is dangerous ground with a tradition of frightful results. Justice Thomas explains that in the Dred Scott case, “the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.” 

This is not to say that there is no such thing as an unenumerated right. Surely the people have rights that are not explicitly written in the Constitution. The Ninth Amendment says this explicitly: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The point is not that there are no unenumerated rights, but that those rights clearly do not come from the Due Process Clause. As we celebrate the Dobbs ruling, conservatives ought to study and take seriously Justice Thomas’s concurring opinion. 

Thomas’s clear prose points out both the theoretical and practical problems of continuing to accept grave errors in constitutional interpretation. Precedent and an unwillingness to upset the tangled web the Court has woven should not overrule the duty of judges to interpret the law faithfully. As we look with hope on a Court finally willing to make bold, honest rulings regardless of the political consequences (see Dobbs, Carson v. Makin, Bruen, and Kennedy v. Bremerton School District), perhaps conservative originalists can even dare to hope that the Court will be bold enough to unwind doctrines such as substantive due process that have caused such abuses of judicial power.

Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative, the Quinnipiac Law Review, the Penn State Online Law Review, and the Federalist. He lives in eastern Pennsylvania with his wife and three young children.

The post Insubstantial Due Process appeared first on The American Conservative.

Restoring the Founders’ Vision of Religion

While the nation waits for the Supreme Court to release its opinion in Dobbs v. Jackson Women’s Health, which is expected to overturn Roe v. Wade, it is easy to lose track of the many other important decisions released this term. In Carson v. Makin, released on Tuesday, the Court in a 6-3 decision continued to roll back the anti-religion rulings of the last 75 years. Those who value the legitimate role of religion in our nation’s public life, as well as the need to adhere to the original meaning of the Constitution, should not overlook the importance of this decision.

The state legislature in Maine enacted a tuition-assistance system for families living in school districts without a high school. Under this program, families could select a public or private secondary school to send their child to, and the school district would make payments to the school to defray the tuition cost. The controversial provision of the statute held that, starting in 1981, the school to which parents elect to send their children must be nonsectarian in order to receive the funds. The Maine Department of Education defined a sectarian school as any school “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” 

So, any accredited public school, secular private school, trade school, etc. would qualify to receive the government payment, but any Catholic, Protestant, Jewish, or Islamic school would not. One wonders why holding the Christian creed would qualify a school as being “sectarian,” but adhering to a woke creed and teaching critical race theory and gender studies would not.  It seems arbitrary to consider traditional religions as “particular faith or belief system[s]” while excluding modern philosophies like critical race and gender theory, and general liberalism from the label. But that is a reflection for another essay.

The question the Supreme Court decided was whether enacting a restriction against sectarian schools receiving funds violates the Free Exercise Clause of the First Amendment. The Court held that it did. Pointing to previous precedent, the Court pointed out that the Free Exercise Clause (citations omitted) “protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.’… In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” 

This is a welcome and crucial reminder to the secularists who insist on a “wall of separation” between church and state. The right to free exercise of religion does not merely mean that Christians may quietly worship at home and in church on Sundays. Free exercise of religion means religious people and institutions may not be coerced, penalized, or denied public benefits because of their religious faith. Religious people, congregations, and schools have a venerable tradition of being not only accepted but encouraged and supported in public life. 

Section II(B) of the Court’s opinion contains a fascinating discussion of the Establishment Clause. Remember, the religious portion of the First Amendment has two parts: Congress shall make no law 1) respecting an establishment of religion, or 2) prohibiting the free exercise thereof. Justice Sotomayor’s dissent in Carson v. Makin points out that a State may choose not to fund certain religious activity even if the Establishment Clause does not expressly prevent the funding. But the majority responds that it is not that simple, because the Establishment Clause and Free Exercise Clause are in tension: if the government is not prevented from supporting a religious activity under the Establishment Clause, any attempt to separate church and state “more fiercely” than the Establishment Clause requires likely will encroach on the right to free exercise of religion. In this case, Maine was not simply deciding not to fund a religious activity. The state decided to fund a certain type of activity (education) but single out and exclude sectarian religious schools. The Court therefore held that the “nonsectarian” requirement in the Maine law was not required by the Establishment Clause and that the law violated the Free Exercise Clause. 

The dispute between the parties in Carson v. Makin raises a question that desperately needs to be discussed in the public square: What does the Establishment Clause mean? Conservatives need to understand the original meaning and limits of “an establishment of religion,” so that we do not cave when we are told there must be a wall of separation between church and state preventing any public recognition of or benefit for religious institutions. In fact, there ought to be no such wall. The Constitution says nothing of the sort, and the states in the early years of the republic simply did not function that way. So if the Establishment Clause does not erect a wall of separation between church and state, what does it do?

The original public meaning of the Establishment Clause is modest and limited: It prevents Congress from making a law respecting an establishment of religion. This means both that Congress is unable to establish a church at the national level and that it cannot interfere with individual states’ decisions to establish a religion (or not). 

There are two important takeaways often forgotten in modern discussion of the Establishment Clause. First, the Establishment Clause was uncontroversial at the time of the First Amendment’s ratification because it only applied to Congress and not the states. The states were extremely diverse in their establishments of religion. Some states avoided having an established church; others did not. Maryland directly aided the Church of England, while New England states favored the Congregational denomination. Massachusetts kept the Congregational Church as its established state church until 1833. The Founders would have been quite perplexed that in 21st-century Maine, the state government would claim giving tax dollars to sectarian schools violated the Establishment Clause, when the Founders thought it quite consistent to have both an Establishment Clause and established state churches. 

Second, we need to acknowledge the vast distinction between favoring one denomination at the expense of others, and favoring non-religion over religion. These are very different. For the sake of argument, let’s accept both that the Establishment Clause now applies to the states as well as Congress, and that the “spirit” of the Establishment Clause is not merely to prevent a state-established church, but to prohibit a state from favoring one denomination over others (the logic of both of these points is disputable and problematic, especially the application of the Establishment Clause to the states). Granting both of these points, there is still no reason that governments cannot subsidize religious education, encourage prayer and religious reading in schools, allow religious symbols in public places, etc. There is nothing in the text or history of the First Amendment, or the traditional practice of the states, that would lead us to believe it is unconstitutional to have Judeo-Christian prayers, readings, symbols, and customs as part of our public institutions. Far from trying to keep religion away from American public life, the Founders thought religion was necessary in our public life. John Adams proclaimed that “[o]ur Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” 

Conservatives need to embrace these founding realities of our nation. Yes, America was founded as a land of religious pluralism. There is no nationally established church or creed and the people are free to exercise religion, or not, as they see fit. But there is no legitimate tradition walling off religion from the public square. There is no basis for sectioning off religious people and institutions and insisting they have no place in American government. Religious Americans should not quietly ask for exceptions and hope that the government might benevolently include them in a school-subsidy program. America has a tradition of embracing religion as a good for society to be promoted and encouraged in public life. While respecting differences, religious Americans need to insist on our right to exist and thrive openly in our public institutions. The Court’s ruling in Carson v. Makin is a solid step to tearing down the wall separating religion from public life and restoring the meaning of the First Amendment. 

Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.

The post Restoring the Founders’ Vision of Religion appeared first on The American Conservative.

Fire the Lawless Attorneys

Attorneys who work in the public sector have the unique experience and responsibility of representing not a private client, but the people, the taxpayers, society itself. Along with the blessed privilege of not having to bill clients with high hourly rates—a privilege I thank God for every day as a county solicitor—public sector attorneys have a solemn duty not simply to provide zealous representation to their client and win their case, but to pursue what is proper under the law regardless of what that means for the outcome.

When public sector attorneys in general and prosecutors in particular fail to live up to their lofty calling, the results are truly dangerous. A politically motivated prosecutor can use his power to unevenly apply the law and prosecute political or ideological enemies. An unscrupulous prosecutor may decide his goal is to win criminal cases at any cost, covering up unfavorable evidence and trampling on the rights of defendants. An ideological left-wing prosecutor may choose to use his power not to uphold and enforce the criminal law, but to enact social reform.

This effort is prevalent today and conservatives need to coherently identify and defeat it wherever it rears its lawless head. As Justice Robert Jackson (then United States Attorney General Jackson) noted in his famous 1940 speech about the role of prosecutors, “while the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Any criminal prosecutor who is acting from base motives, from any motive other than impartially enforcing the criminal law as written to advance the common good, cannot be tolerated in civil society.

Between the recent recall of San Francisco District Attorney Chesa Boudin, the impending recall of Los Angeles District Attorney George Gascon, and the Pennsylvania legislature’s recent decision to introduce articles of impeachment against Philadelphia District Attorney Larry Krasner, there is potential for a movement here. As Katya Sedgwick recently wrote for The American Conservative, the recall of the San Francisco District Attorney Chesa Boudin “has yet to morph into a full-fledged political movement with a coherent ideology capable of delivering true change.” But it can. And it needs to. There is the potential to unite a voting coalition that could create a real law-and-order reform movement and remove the dangerous progressives currently occupying many district attorney offices.

First, we should distinguish between two different types of bad prosecutors mentioned earlier. The type of prosecutor who enforces the law unevenly, using the law as a weapon against his personal or political enemies, is quite different from the left-wing activist prosecutor. The central issue in the current moment is that we have powerful prosecutors in major cities motivated by political ideologies that, in many cases, discourage the prosecution and imprisonment of criminals. The prevalent issue is not that officials use criminal prosecution as a personal weapon, but rather that for ideological reasons they are choosing not to wield the weapon at all. As a result, they offer shocking plea deals to dangerous criminals. Or they make public announcements that they will not prosecute certain types of crimes.

This is unacceptable. The prosecutor’s role is to enforce the criminal laws as they are written. The legislatures have passed criminal codes reflecting the will of the people as to which behaviors ought to be prosecuted as criminal. The prosecutor’s job is to enforce those decisions, not to make the decisions. Of course, district attorneys’ offices have limited resources and have to make case by case decisions about which prosecutions to focus on. But announcing that certain actions defined by law as criminal will never be prosecuted goes beyond prosecutorial discretion. It is an abuse of office.

An analogy between the role of judges and the role of prosecutors helps explain the abuse. Justice Antonin Scalia was convinced that the death penalty was legally permitted under the Eighth Amendment, but he seriously wrestled with the question of whether the death penalty was moral according to his conscience and religious beliefs. He concluded that it was. He remarked wisely that if he was ever convinced what the law required of him was immoral, his proper recourse would be “resignation rather than simply ignoring duly enacted constitutional laws.”

Left-wing district attorneys ought to take note. If they believe that the criminal laws passed by the legislature are immoral or ineffective, they should resign from their prosecutorial roles and run for the state legislature. These activists are occupying the wrong office.

Sadly, I am not optimistic that any left-wing prosecutors will heed the call to do some soul-searching, realize they are acting lawlessly and disregarding the core duties of their office, and resign. Therefore, the political efforts to recall and impeach wayward prosecutors are necessary to stop what is becoming a crisis.

This movement can succeed, even in cities that consistently vote Democrat. In the 1993 election for mayor of New York City, Rudy Giuliani managed to become the Republican mayor of an intensely Democratic city. Granted, Giuliani’s platform was rather liberal on many social issues, and he was endorsed by the Liberal Party. But the point remains: New York City was devastated by violent crime, as well as “a general sense of unrest…a feeling that the city was uncontrollable and that the general quality of life in the city had declined.” This feeling of unrest and a lack of control in a major Democrat-controlled city led the people to reject lawlessness and actually elect a Republican promising law and order.

The examples of New York City in 1993 and San Francisco in 2022 provide a valuable lesson. When violent crime invades a community, when a sense of unrest, chaos and decline envelops a society, the people act. They choose law and order; they opt for safe and stable communities. Conservatives need to seize these opportunities, come together with a message that will attract independent and Democrat voters, and take back control of the city streets from violent criminals and the progressives who enable them.

This is not mere partisan politics. This is common sense. Without the rule of law, no other issue matters and communities fall apart. This toxic atmosphere of lawlessness and crime, of chaos and unrest, is prevalent in major cities all across the nation. District attorneys that fail to zealously enforce the law are a major part of the problem. They need to do their job or by hook or by crook, by impeachment or recall, they need to go.

Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative, the Quinnipiac Law Review, the Federalist, and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.

The post Fire the Lawless Attorneys appeared first on The American Conservative.

The Left Wants to Repeal the Second Amendment

Every time there is a mass shooting, the same political scene unfolds. Voices on the left begin calling for “sensible public policy” on firearms. The hosts of The View lose their minds because evil Republicans won’t fix the problem. Democratic politicians haul in money while decrying Republicans’ failure to “prevent gun violence and save lives.” The president makes a speech insisting he respects lawful gun owners, before asking when the carnage will stop and demanding a host of “common sense” gun-control measures. Yes, the left wants background checks, red-flag laws, etc. But the reform they really seem to salivate over is banning supposed “assault weapons,” like the AR-15. The issue inevitably gets debated back and forth in the media. Nothing happens at the federal level. Then, after a few weeks, the issue fades.

Why this action-less cycle? Certain voices on the left claim that America suffers from a “disproportionate influence of small states,” caused by the equal representation in the Senate and the existence of the filibuster. This argument has been used in a variety of political situations over the years when the pesky middle of the country gets in the way of what the Blue Coasts want to impose. When liberals are honest, they know that this nation was never created to be a democracy. This “problem,” then, is not a problem at all; it is an intentional check on the majority’s ability to impose its will on the nation in all matters. Also, perhaps the constant failure to pass these elusive “sensible gun-control measures” is not simply a matter of unsuccessful, stymied legislative efforts. Perhaps the existence of the Second Amendment, and a United States Supreme Court willing to uphold it, are the real issues for the left.

While voices on the left push many false claims about the text and meaning of the Second Amendment, two in particular deserve mention. 

First, one cliche always seems to circulate after these tragedies. It goes something like: “The Second Amendment says it is necessary to have a well-regulated militia. So, the Second Amendment protects the right to bear arms for militia members, not ordinary civilians.” It is always uttered as if it is an original thought that has never been considered. 

But it has been considered. And, as the majority opinion penned by Justice Scalia in D.C. v. Heller in 2008 observed, the claim suffers from both a grammatical error and a historical one.

In the text of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State,” constitutes the preface. It is not an operative legal clause at all. A prefatory clause may give you the reason a writer has in mind for the clause that follows, but it does not limit what comes next.

For example, if there were a rule that “Proper decorum being necessary in church, the right of the people to wear fine dresses and suits shall not be infringed,” this would in no way limit the right to wear fine clothes to church-goers or to Sunday. The right to wear fine clothes would be the operative part of the rule. The first part announces the purpose, but the purpose is not a limit. If the Second Amendment read “The right of the people to keep and bear arms so that they can form a well-regulated militia shall not be infringed,” the conversation would be different, since purpose (forming the militia) would be tied to the right itself. But the language of the actual Second Amendment simply does not allow such a reading.

Then there is the historical issue with the definition of a militia here. Crafty progressives or unwitting civilians may opine that the militia refers to some kind of military force, or, at least, a state or local quasi-military force—something like the national guard or local police department today. If we have organized police forces and standing armies protecting us, they ask, isn’t the whole “militia” thing obsolete? The answer ought to be a resounding “No!” Justice Scalia’s opinion in Heller takes a deep dive into the historical context. In short, the “militia” at the time included all males physically capable of acting for the common defense, and was decidedly not a standing military. In fact, the Antifederalists at the time of the American Founding wanted the Second Amendment in place because they feared that the government would disarm the people and allow a standing army or select government-run militia to displace an armed populace. The citizen militia identified in the Second Amendment is meant to ensure that the people, and not government forces alone, are armed.

We should also address the asinine idea that the Second Amendment protected only the muskets and flintlock pistols of the 18th century and would not have covered “weapons of war” then or supposed “assault rifles” today. President Biden has repeatedly and falsely stated that the Second Amendment initially limited who could own a gun and what type of weapon one could own. This is clearly not true; it appears there was no law preventing 18th-century American civilians from owning a cannon after all. The Second Amendment itself places no limits on gun ownership, and there was no federal legislation on the issue for decades after the Bill of Rights was passed. 

While the Second Amendment itself does not in any way limit firearm rights, most scholars concede, as did the majority opinion in Heller, that the right to bear arms is not absolute. If there is at least some room to regulate the details of when, where, and how the people may keep and bear arms, one key aspect of the discussion in Heller must be remembered. The Heller opinion restates a principle previously articulated in a Supreme Court case called United States v. Miller: the sorts of weapons protected by the Second Amendment are particularly those “in common use at the time.” Yes, in the 1790s, that was probably the musket and flintlock pistol. But what are the weapons “in common use” that warrant the particular protection of the Second Amendment today?

Handguns are the most commonly owned type of firearm; the most common caliber handgun is the 9mm. Among rifles, what is the most common? Bolt-action hunting rifles? The simple .22? Of course, the most commonly owned rifle in the United States is the AR-15. It is effective, easy to learn to use, and accurate, without requiring too much practice. And being fairly lightweight and with almost no kickback, it is an ideal home-defense firearm for women who are often uncomfortable with the kick of a shotgun. 

This is where the left’s agenda crashes into the reality of the Second Amendment: The AR-15, demonized as an assault weapon by the left, is actually an ordinary firearm in common use. The president apparently also wants to add 9mm handguns—literally the most popular self-defense weapon in the nation—to the list of “high-caliber” firearms that ought to be banned. These are exactly the types of firearms the Second Amendment gives the people the right to keep and bear.

It is rare and almost admirable when someone puts their true objective in writing, and for the left to accomplish what it wants, it must repeal and replace the Second Amendment. Only then will we get the “gun control” measures that the left desires. Short of that, you will not see Congress pass these “meaningful common-sense gun-control measures” in the wake of a mass shooting. Congress will not ban the 9mm handgun nor the AR-15 as an assault weapon. You will only see political posturing, virtue signaling, name-calling, and fundraising; then it’s back to business as usual. Despite the constant barrage of noise about banning assault weapons, the left knows they can’t do it. 

After much hyperbolic rhetoric about “common-sense gun control,” particularly banning assault weapons, the president has already essentially admitted defeat. He has already proposed an alternative: “[i]f we can’t ban assault weapons then we should raise the age to purchase them from 18 to 21.” Until we see a major movement on the left to amend the Constitution and repeal the Second Amendment, we should assume these political voices aren’t actually serious about the gun bans for which they advocate. And if the left does start an honest movement to repeal and replace the Second Amendment; well, this is still America. Good luck with that!

Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative, the Quinnipiac Law Review, and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.

 

The post The Left Wants to Repeal the Second Amendment appeared first on The American Conservative.

Congress’s Role in a Post-Roe World

The leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization signals that Roe and Casey are likely to be overruled in the coming months. This leak has sparked a range of political debates, from the effect it will have on the midterm elections, to the implications of the leak itself, to the next steps for abortion law. On the latter point, many on the right are breathing a sigh of relief that the issue of abortion can finally go “back to the states.” 

Even pro-abortion advocates admit that Roe is bad law. Roe made abortion a constitutional right despite the following realities: Abortion is not a right mentioned or implied in the Constitution, there was no history in this nation of protecting abortion as a right, and the United States has a long history of laws prohibiting abortion. If the Supreme Court does in fact overrule Roe and Casey, it will be a good and healthy thing for the republic for moral, legal, and political reasons. The question, though, is who decides abortion policy if and when the Supreme Court overrules Roe and Casey? Does abortion policy simply return to the states? Or does Congress potentially have a role to play in abortion legislation in a post-Roe America?

Assuming the final decision in Dobbs does indeed overrule Roe and Casey, it is important to briefly summarize the facts and legal implications of the Dobbs case itself. In 2018, Mississippi passed a state law banning nearly all abortions after 15 weeks. An abortion facility in Mississippi filed a lawsuit claiming the state did not provide evidence that unborn children are viable at 15 weeks. Because current Supreme Court precedent prohibits states from banning abortion prior to fetal viability, the lawsuit claims that the state law conflicts with current Supreme Court precedent. Therefore, they argued, the Mississippi law is unconstitutional.

If the Court’s final decision in Dobbs overrules Roe and Casey, its reasoning will be that while the Mississippi statute is indeed in conflict with Supreme Court precedent, the statute can stand, because the previous Supreme Court precedent is erroneous and therefore must be overruled. It is crucial to understand that such a ruling would not necessarily “send the issue back to the states.” It would merely hold that the enshrining of abortion as a constitutional right was legally incorrect and is therefore overruled.

Conservatives must not conclude that abortion must inevitably become an issue for the states if Roe and Casey fall. While it is true that abortion would go back to the legislatures, there will be nothing in the Dobbs decision, and nothing in the United States Constitution, that precludes Congress from considering and passing pro-life legislation. If Congress is ready and willing to take up the abortion issue, there are at least two areas of the Constitution that give them grounds to try to do so: the 14th Amendment and the Commerce Clause.

The 14th Amendment to the Constitution, ratified in 1868, was passed primarily to ensure that no state could deny a particular class of persons “equal protection of the laws” or “deprive any person of life, liberty, or property, without due process of law.” The Equal Protection and Due Process clauses of the amendment were passed to attempt to protect emancipated African-American slaves from legal discrimination at the state level. But subsequent legal decisions as well as a common-sense reading of the amendment’s text make it clear that these sections of the 14th Amendment protect “any person,” not one particular class of persons. Importantly, the 14th Amendment is not merely the expression of an ideal; it has teeth. The final section of the 14th Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

From here, the argument is simple. Any person is protected by the Equal Protection and Due Process Clauses of the 14th Amendment. Modern science provides ample reasons to believe that the unborn child in its mother’s womb is a human being, a person. Therefore, no state can deny an unborn child in its mother’s womb the equal protection of the laws, or deny that child of life, liberty, or property without due process of law. If the Supreme Court ever rules that this language applies to unborn persons, then abortion becomes constitutionally prohibited. This argument was made to the Court in Roe and was acknowledged and dismissed by Justice Blackmun. 

In the absence of such a court ruling, however, the 14th Amendment still gives to Congress the express power to make laws to enforce these protections. A pro-life Congress could pass legislation invoking the 14th Amendment, declaring that at a certain point (be it conception, implantation, or detection of a heartbeat), an unborn child is a person, and therefore cannot be denied due process or equal protection of the laws. Such a law would certainly be subject to legal challenge in the courts, and there is no shortage of pro-abortion advocates who would be willing to take up such a cause. Still, a pro-life Congress would have the legitimate option to use its enforcement power under the 14th Amendment in this way if it wished.

Apart from 14th Amendment-enforcement legislation, Congress could enact abortion legislation via the Commerce Clause. Article I, Section 8 of the Constitution gives Congress the power “to regulate commerce… among the several states.” Putting past abuses of this clause aside, the commerce power is explicit in the Constitution. Congress has express authority to regulate any kind of commercial activity that crosses state lines.

If Roe is overruled and states begin to pass abortion legislation, inevitably there will be instances of abortion being restricted in one state and accessible in a neighboring state. Congress could pass legislation prohibiting someone from crossing state lines in order to have an abortion in certain circumstances. In particular, Congress could prohibit an adult from taking a minor across state lines to help the minor procure an abortion. Given concerns about sex traffickers regularly transporting their victims to receive abortions, the latter proposal ought at least to be considered.

There have already been attempts by conservative states to prevent their residents from procuring abortions in other states where the practice remains legal. Those state laws will be challenged under the Dormant Commerce Clause doctrine, which basically holds that the Commerce Clause implicitly prevents states from passing laws that affect interstate commerce. This tension will lead to an interesting legal question about American federalism: Does the Commerce Clause grant Congress the authority to regulate interstate access to abortion? Does the Dormant Commerce Clause preclude states from prohibiting their residents from crossing state lines to procure an abortion? These questions need to be discussed, debated, and, in all likelihood, addressed by the courts. 

The above arguments only suggest that Congress has the authority to regulate abortion, not the requirement to do so. There are prominent voices within the Republican Party who are willing to consider federal pro-life legislation. There are others who think it can or must be an issue for states to decide. But assuming the Dobbs decision does indeed overrule Roe and Casey, pro-life conservatives should know that there is a legitimate case for federal legislation against abortion. Republican federal lawmakers should have a real discussion on this issue and consider all the options at hand, rather than punt on the grounds that it is inherently “an issue for the states.” 

If Roe falls, many (if not all) states will likely consider and pass some kind of abortion legislation. But as Hadley Arkes convincingly points out, the movement against Roe and the abortion regime is, at its center, about the protection of innocent lives, not the inappropriate exercise of “raw judicial power.” So while overruling Roe would be a great achievement both for the rule of law and the pro-life movement, conservatives must remember that their overarching goal is to stop abortions, not simply to send the issue back to the states.

For years, Republicans have been elected to federal office claiming to be boldly pro-life. Once the Dobbs opinion is officially released, they will likely have a constitutional basis to put that pro-life position into practice if they choose to do so. It will be interesting to see how conservatives in Congress react. Some will push for aggressive pro-life legislation, while others will insist that this ought to be decided at the state level. The conversation must be allowed to play out. Conservatives must acknowledge that there is a constitutional basis for passing pro-life federal legislation. If they choose to let it be decided solely by state legislatures, it should be known that that it will have been a choice, not an inevitability.

Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.

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