Sen. Graham's Proposal for a National Abortion Law and Gun Rights

 Prof. Reynolds 9/15/22 New York Post column:

The Supreme Court earlier this year found the US Constitution does not recognize the right to have an abortion. Now Sen. Lindsey Graham (R-SC) wants Congress to act.

His bill, modeled on the Mississippi legislation the court upheld in Dobbs v. Jackson Women’s Health Organization, would ban abortion after the 15th week following conception.

Graham’s bill isn’t especially radical — most European countries actually have stiffer rules, generally cutting off any-reason abortion between weeks 12 and 14.

Some MAGA Republicans think Sen. Graham is actually trying to help the Democrats because much of GOPe does not want to be a majority party.  (This is a weird response from a group of "semi-fascists.") Then they would have no excuse for failing to undo the damage that they blame on Democrats.

I am prepared to suggest a different explanation.  Democrats are hell-bent on passing a national law to protect abortions up to T-1 millisecond.  Democrats might argue that Congress lacks authority to regulate abortion at all, because the Constitution gives Congress no such authority.  Yes, which would sink the argument for a national right to abortion law.

Before I go into my historical observations, let me say that leaving abortion laws to the people of each state and therefore to their elected representatives seems the best solution.  The Constitution distributed power to the states in most areas.  Each state is effectively a laboratory where we get to see the consequences of each law.  If California decides that abortion is so critical that it needs to be both lawful and even subsidized, the taxpayers may eventually decide this transfer of wealth to abortion doctors largely for the benefit of women refusing to make sensible decisions over their bodies makes no sense.  It also subsidizes the creeps getting teenagers pregnant who might otherwise get stuck with child support payments or statutory rape charges.

An interesting consequence of all this includes the gradual diminution of the population of abortion-on-demand states, reducing their national influence.  This is good; aborting a state's next generation of people will diminish its seats in the House of Representatives.

But what rationale could Democrats make to justify a national abortion-rights law (or for that matter, pro-lifers in support of  Sen. Graham's proposal).  The Roe v. Wade (1973) decision argued that abortion bans were relatively recent:

In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law....

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. 

Even if true, the Court's decision continues by arguing:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. 

The question that arises from the incorporation through the 14th Amendment is whether a right to abortion was recognized in 1868.  As I have previously mentioned:

A bit more digging led to Horatio R. Storer, M.D., On Criminal Abortion in America (1860) which lists all the state abortion laws then in effect and that it appears to be all the states, contrary to Roe's claim.

 So on what basis might Congress legislate?  There is the incredibly powerful interstate commerce clause.  As others have observed:

The construction of the commerce clause makes it clear that Congress has the same commerce regulating power over interstate commerce (trade across the borders of a state) as it does over foreign trade. That means the federal government can theoretically ban trade of a given product across state lines. But the purpose behind delegating Congress the power to regulate interstate commerce was not to restrict trade, but to keep it free and open.

The framers wanted the federal government to possess the power to prevent states from inhibiting trade through levying tariffs on neighbors. For instance, to have the power to stop Tennessee from slapping a fee on bourbon imported from Kentucky. It was a power intended to protect free and robust trade. The commerce clause also gave the federal government the authority to pursue a unified trade policy with other nations, as opposed to each state enforcing its own policy.

 James Madison explained the intent of the commerce clause in a letter to J. C. Cabell dated February 13, 1825.

I always foresaw difficulties might be started in relation to the interstate commerce power…Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend it all the qualities and incidental means belonging to the power over foreign commerce.

The federal government was never intended to micromanage the economy through wage laws, labor laws, agricultural regulations, industrial regulations, healthcare laws and the like. Those powers were left to the states and the people. When the federal government regulates the economy and it does not directly relate to trade, it is usurping power and violating the Constitution.

Of course, Congress has repeatedly used interstate commerce regulation to prohibit all sorts of offensive behavior that would ordinarily be considered intrastate.  Heart of Atlanta Motel, Inc. v. United States (1964) required a business to abide by the Civil Rights Act of 1964 (prohibiting racial discrimination in accommodations):

It is readily accessible to interstate highways 75 and 85 and state highways 23 and 41. Appellant solicits patronage from outside the State of Georgia through various national advertising media, including magazines of national circulation; it maintains over 50 billboards and highway signs within the State, soliciting patronage for the motel; it accepts convention trade from outside Georgia and approximately 75% of its registered guests are from out of State.

One could use this same ahistorical interstate commerce clause to regulate any abortion provider that was in proximity to interstate highways, that advertised its services (which would include a webpage) or provided services to a majority of out of state patients.

So here is the additional wrinkle.  If Democrats insist that they have authority to make abortion on demand a national law, a pro-gun majority could use similar logic to require every state to allow open carry, with the added feature that the 2nd Amendment is actually in the written Constitution, not just in the special version that pro-choice justices use (or are those special glasses they are using?)  Furthermore, the 14th Amendment was explicitly adopted to guarantee the right to keep and bear arms.  

The same interstate commerce clause logic from Heart of Atlanta could be used to require almost all businesses along interstates or that advertise nationally (e.g., McDonald's, Olive Garden, Denny's) to not discriminate against open firearms carriers.

Sen. Graham's proposal is bad politics but opens the very real possibility for a tit-for-tat from a future pro-gun Congress.