Bill To Make Roe Permanent Unconstitutional: ACLJ Legal Analysis Finds Radical Left Using Leaked Supreme Court Draft Opinion To Push Congress To Pass Unconstitutional Bill

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The leak of the draft opinion in Dobbs v. Jackson Women's Health Organization, which would overrule both Roe v. Wade and Planned Parenthood v. Casey, has triggered a meltdown of epic proportions on the pro-abortion side. First, it is important to note that the draft opinion is just that – a draft – subject to change and modification between now and whenever the Court releases its final opinion in the case. In addition, the draft opinion, should it in fact become substantially the Court’s final opinion, outlaws no abortions anywhere. With that said, our initial legal analysis of the draft opinion concludes that any attempt by Congress to pass a law that would codify or expand Roe v. Wade would be unconstitutional.

The pro-abortion Left has declared that the Apocalypse is upon us. We’ve long said they worship at the altar of abortion. Now they are displaying a rabid zeal, not only on the streets, but in the media, on social media, and in the halls of Congress, where that same unhinged radicality is driving them to use a stolen leaked Supreme Court draft opinion to pursue abortion legislation that really is as unprecedented in its breadth as it is unconstitutional in law.

We’re talking about a pair of bills called the Women’s Health Protection Act, H.R. 3755 (“WHPA”) and the Reproductive Choice Act, S. 3713 (“RCA”). The first bill, breathtaking in scope, would by design enshrine in federal law what President Biden calls the “right to abort a child.”  The WHPA would sweep away every federal, state, and local law that in any way attempts to limit, interfere with, impede, hinder, or even try to regulate abortion on demand and at any stage of pregnancy, up to the moment of birth.

Moreover, the WHPA implicitly abolishes the whole complex of conscience-protecting laws and regulations that Congress and the States have created over the years since Roe to balance the judicially mandated availability of the procedure under Roe with the fact that, for many Americans, participating in that procedure constitutes a violation of their most deeply held religious and ethical values. The WHPA even goes so far as to subordinate to the “right to abort a child” the constitutional right to Free Exercise of Religion by forbidding the application in any abortion-related case of the Religious Freedom Restoration Act of 1993 (“RFRA”). The RCA, a response by pro-choice Senators Collins and Murkowski to the radicality of the WHPA, would at least leave in place conscience protections, including RFRA.

Perhaps not surprisingly, within minutes of the leak of the Dobbs draft, pro-abortion leadership in both houses of Congress announced that they would bring the WHPA to a vote as soon as possible – as early as next week.

Here at the ACLJ, we responded by having our legal team immediately begin an analysis of both the WHPA and RCA. We have identified the fundamental legal flaws underpinning both bills – particularly in light of the anticipated overruling of Roe and Casey based on the leaked draft opinion – and are working to identify legal claims and parties that would have the best chance of succeeding in court challenges we are prepared to bring should either bill be passed by Congress and signed by the President.

Our analysis and research is ongoing, but we have already identified a number of serious constitutional defects in the bills. While the WHPA purports to be an exercise of congressional authority granted by the Commerce Clause, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause, our analysis shows that none of these justifications would be valid, especially if Dobbs overrules Roe and Casey. Moreover, there are serious Tenth Amendment issues that would arise should the draft, or something substantially equivalent, indeed become the final Dobbs decision. The WHPA would also likely sweep away all federal and state laws protecting the conscience rights of health care providers.

  • Tenth Amendment. It is a fundamental principle of our political system that the federal government is a government of enumerated, that is, limited powers. This means, among other things, that the Federal Government may act only where the Constitution authorizes it to do so. Printz v. United States, 521 U.S. 898, 936-37 (Thomas, J. concurring). Should Dobbs reverse Roe and Casey and hold that there is no constitutional right to abortion under the Fourteenth Amendment (or any other constitutional provision), the Tenth Amendment is clear as to which authority within our “system of dual sovereignty” belongs the responsibility of legislating abortion: the states. Since both the WHPA and RCA are attempts to usurp states’ authority to regulate abortion, they violate the Tenth Amendment.
  • The Necessary and Proper Clause does not authorize Congress to enact the WHPA or the RCA. That Clause merely permits “exercises of authority derivative of, and in service to, a granted power,” and it does not authorize “a substantial expansion of federal authority.” NFIB v. Sebelius, 567 U.S. 519, 560 (2012). There is no constitutional provision that authorizes Congress to enact these bills, and their enactment would improperly expand federal authority.
  • Commerce Clause. The bills cannot be justified under Congress’s Commerce Clause powers. The bills do not regulate the instrumentalities or channels of interstate commerce, and they are not tied to interstate commercial activity. Rather, the bills would create a statutory “right” of medical professionals to kill unborn children, even when doing so is a felony under state laws. The regulation of crimes against the person (murder, abortion, assault, etc.) falls squarely within the States’ police power. Congress lacks the authority to position itself as the nation’s sole arbiter of whether, and under what circumstances, abortion is lawful or unlawful.
  • Section 5 of the Fourteenth Amendment. An overruling of Roe and Casey based on a finding that there is no constitutional right to abortion would mean that Congress could not use its Fourteenth Amendment Section 5 powers to “readopt” a right to abortion. Section 5 authorizes Congress to enact legislation “to enforce” the Fourteenth Amendment. If there is no right to abortion in that amendment (as the draft opinion holds), then there is no right for Congress to enforce.
  • In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court made clear that, ultimately, the Court, not Congress, gets to decide the substance of the Fourteenth Amendment’s restrictions on the states. “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” Id. at 527. If, then, Dobbs, declares that there is no “right to abortion” under the Fourteenth Amendment, Congress would have no Section 5 power to enforce that nonexistent right.
  • Both bills are also fundamentally inconsistent with the Equal Protection Clause and, thus, unconstitutional. The WPHA and RCA force states to deny the equal protection of the law to an entire category of human beings, namely, those alive but yet unborn.

  • The WHPA, both by expressly forbidding the use of RFRA by those aggrieved by the Act’s imposition of abortion as a “super right,” as well as its express preemption of any federal and state laws that might conceivably be viewed as hindering access to abortion, would effectively abolish the right of health care workers to conscientiously object to participating in abortions. This right, deriving to some extent from the First Amendment’s Free Exercise Clause but also, arguably, a substantive due process right, has always been recognized to a greater and lesser degree since Roe was decided in 1973. In fact, Roe itself, and its companion case, Doe v. Bolton, recognized a right of health care providers to not participate in abortions for reasons of conscience. The Roe majority even quoted with approval resolutions of the American Medical Association confirming that “no party to the [abortion] should be required to violate personally held moral principles.” 410 U.S. 113, 143 n.38 (1973). The WPHA, while claiming to do nothing more than codify Roe (and Casey), would actually ignore this crucial limitation on the abortion right.

In the coming days, we intend to hone our arguments and identify potential parties who would be best positioned, legally, to bring court challenges to the WPHA and/or the RCA should either of them become law. It may be that state attorneys general would be in the best position to mount facial challenges to either law, as both bills amount to unconstitutional encroachments on the principles of federalism that undergird the U.S. Constitution. Individual health care providers and religious hospitals and health care facilities would also likely be able to mount as-applied challenges based on the circumstances as we expect them to play out, especially under the WPHA.

Regardless of what legislation, if any, is ultimately enacted by Congress, the ACLJ will be prepared to help defend innocent human life in the coming days and months. We are delivering our initial legal analysis to each Senate office.