Washington does not yet have a Museum of Political Spin, but when it does, I nominate the relentless campaign to portray the abortion issue as about “choice.” Legislation introduced in the Senate and House now pulls aside that curtain and reveals that it’s really about abortion after all.
Let’s face it, everyone is pro-choice. If you decide where to live, work, or go to church; what to eat, wear, or say; or how fast to drive, you are pro-choice. The law – whether my parents’ rules growing up or federal statutes – is about whether particular choices should be available.
By the 1970s, every state had decided that abortion should not be available in most circumstances or late in pregnancy. In Roe v. Wade, the Supreme Court in 1973 claimed that the Constitution makes abortion available throughout pregnancy for nearly any reason. In other words, the court said that the Constitution is pro-abortion. It imposed an abortion policy that is more permissive than those of all but a few nations anywhere in the world.
For the past 46 years, Roe has been rightly condemned as an ends-justify-the-means distortion of the Constitution. It’s an example of Thomas Jefferson’s warning against that document becoming “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” It also demonstrates the difference between, as Justice George Sutherland wrote in 1937, interpreting the Constitution and amending it in the guise of interpretation.
That alone is enough to consider correcting this constitutional error, as the Supreme Court has done hundreds of times. The mere suggestion that it might consider doing so with Roe v. Wade, however, has sent abortion advocates into orbit, and their response reveals what it really means to be pro-abortion.
On May 23, Sen. Richard Blumenthal, D-Conn., introduced S.1625, the Women’s Health Protection Act, which purports to prevent any limitations, and even to eliminate existing ones, on abortion. It is not only more radical than Roe v. Wade as abortion policy goes but, even with Roe still on the books, the WHPA is unconstitutional on its face.
The bill would prohibit any government entity – local, state, or federal – from imposing “limitations or requirements” that “make abortion services more difficult to access.” This “access” includes anything that could conceivably make abortions less likely to occur.
The WHPA is more extreme than Roe v. Wade in several ways. First, it pretends that no other human being exists during a pregnancy. The bill never uses words such as “child,” “baby,” “embryo,” “unborn,” or “mother.” It uses “fetus” only once, to refer to a “dead fetus” in the definition of pregnancy. The Supreme Court, however, uses all of these words in Roe v. Wade and explicitly acknowledges not only that another human being is present, but that its presence significantly affects how the issues should be handled.
Second, the WHPA prohibits treating abortion any differently from what it calls “medically comparable procedures.” Yet the other human being involved is precisely what makes abortion incomparable. Even the Supreme Court was candid that the “pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.” This is, the court said, what makes abortion “inherently different.”
Third, the WHPA says that the only permissible government consideration is “advanc[ing] women’s health or the safety of abortion services.” Just four years after Roe, however, the Supreme Court held in Maher v. Roe that a state may “make a value judgment favoring childbirth over abortion and to implement that judgment.”
Fourth, the WHPA would prohibit policies that the Supreme Court says Roe v. Wade allows. The WHPA, for example, would prohibit government policies that even “indirectly increase the cost of providing abortion services or the cost for obtaining abortion services.” In Harris v. McRae, however, the Supreme Court in 1980 upheld the federal Hyde Amendment, which prohibited federal funding of abortion, stating that there is no constitutional right for a woman to have an abortion at public expense.
In addition to being even more pro-abortion than Roe v. Wade, the WHPA is patently unconstitutional. Congress has no authority to dictate the substance of state and local legislation or regulation. Congress isn’t pre-empting state or local governments by affirmatively legislating in this area; the WHPA does the opposite, outlawing any action, by any government entity, that even indirectly limits access to abortion.
To top it off, the WHPA says that its directives “apply to government restrictions on the provision of abortion services, whether statutory or otherwise, whether they are enacted or imposed prior to or after the date of enactment of this Act.” In other words, the WHPA not only prohibits any new limitations by any government anywhere but apparently repeals all existing ones.
I have not spoken to anyone who has ever heard of such a thing. This is not a “sense of the Senate” resolution expressing the opinion that government should allow access to abortion. This is federal legislation that tells every government entity “or individual” what legislation or regulation it may enact and apparently wipes every “offending” government action off the books.
The Constitution established a system of government in which power is separated among three branches and divided between the federal and state governments. Our liberty depends on maintaining these boundaries. The WHPA would reject it all. Now that’s what it means to be pro-abortion.
This piece originally appeared in Real Clear Politics