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June 24th, 2011

Unconstitutionally Pro-Life

By Nathan Tucker

In an act of contradiction that has yet to be adequately explained, five Republican presidential hopefuls recently pledged to appoint originalists judges who would strike down as unconstitutional the federal fetal pain bill these candidates simultaneously pledged to “advance and sign.”  And though two of these five candidates currently serve in Congress, they have yet to introduce the legislation.

Congresswoman Michele Bachmann, former Speaker Newt Gingrich, Congressman Ron Paul, former Minnesota Governor Tim Pawlenty, and former Senator Rick Santorum all signed the Susan B. Anthony List (SBA List) Pro-Life Presidential Leadership Pledge, in which they pledge that, if elected, they will:

One, only nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

Two, select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

Three, advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

Four, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Both SBA List and Operation Rescue confirmed to The Iowa Republican (TIR) that the federal Pain-Capable Unborn Child Protection Act does not yet exist.  Steve Valentine, the interim Legislative Outreach Director at SBA List, told TIR that they did not have any model legislation publicly available, but that the bill would roughly follow the fetal pain legislation passed by Nebraska in 2010.

Valentine told TIR that they are waiting for the “right political climate” to introduce the legislation, which he defined as a Republican-controlled White House, Senate, and House.  Both Congresswoman Bachmann and Congressman Paul declined to respond to requests by TIR as to whether they would introduce or at least co-sponsor the Act in the House this year.  So much for their pledge to “advance” the bill.

When asked the same question, Fred Love, Congressman Latham’s spokesman, replied that:  “Since this is not yet a federal bill, Congressman Latham is not able to signify support or opposition until he can review specific and finalized language.  However, as a pro-life legislator, Congressman Latham is most certainly supportive of any proposal that has these merits.”  Congressman Latham’s office declined to clarify his position when TIR attempted to follow up this non-answer by again specifically asking if he would introduce the bill himself.

In an interview with TIR earlier this week, Congressman King said that he was very supportive of the measure at both the state and federal level because we “understand medically that unborn children experience pain.”  He stated that he would look into introducing the Act if he concludes he would be the best person to do so, and hopes to come to a decision relatively soon.  Senator Grassley declined to respond to TIR’s inquiries.

Left unsatisfactorily answered by any of the five signatories of the Pledge or by Iowa’s congressional delegation is which of Congress’ enumerated powers provides the authority for the Act.  The Pain-Capable Unborn Child Awareness Act pending in the Senate, for instance, appears to rely on Congress’ authority to regulate interstate commerce to require that abortion providers inform mothers that their unborn child may feel pain after twenty weeks of gestation.

Given that an abortion occurs entirely within a single state, however, that enumerated power is inapplicable even under the Supreme Court’s “lax (but not-infinite) version of the interstate commerce power.” As Congressman Paul noted with regards to the 2003 Partial Birth Abortion Bill, “This greatly stretches the definition of interstate commerce.  The abuse of both the interstate commerce clause and the general welfare clause is precisely the reason our federal government no longer conforms to constitutional dictates but, instead, balloons out of control in its growth and scope.  [This bill] inadvertently justifies federal government intervention into every medical procedure through the gross distortion of the interstate commerce clause.”

In contrast, the Life at Conception Act pending in the House, co-sponsored by Congressman King but not by Congresswoman Bachmann or Congressmen Paul and Latham, states as its constitutional basis:  “To implement equal protection for the right to life of each born and preborn human person, and pursuant to the duty and authority of the Congress, including Congress’ power under article I, section 8, to make necessary and proper laws, and Congress’ power under section 5 of the 14th article of amendment to the Constitution of the United States, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being.”

Congress has, under the 14th Amendment, the power to prevent States from “depriv[ing] any person of life, liberty, or property, without due process of law.”  The problem with applying “person” or “life” in this clause to the unborn is that the provision “simply requires that the law be followed before the government could execute a criminal, jail an individual, impose a fine, deprive a person of their estate, sentence them to exile, etc.  The only right granted by this Clause was process—requiring the government to proceed according to the law of the land (i.e., constitutional and statutory provisions).”

Presumably recognizing this, the Life at Conception Act instead appears to claim as justification Congress’ power under the 14th Amendment to prevent a State from “deny[ing] to any person…the equal protection of the laws.”  In other words, the Act holds that it is a violation of equal protection for the States to create laws punishing the murder of born persons differently than the murder of unborn persons.

Among other problems with this theory is that, as then-Justice William Rehnquist noted in his dissent in Roe v. Wade, “by the time of the adoption of the Fourteenth Amendment in 1868, there were at least thirty-six laws enacted by state or territorial legislatures limiting abortion.”  No one suggested during the ratification debates that these thirty-six laws would become unconstitutional because they did not outlaw the murder of all unborn children, nor did any State feel constitutionally-compelled to enact a blanket ban on abortions following ratification.

The Pain-Capable Unborn Child Protection Act appears, therefore, to be beyond the reach of Congress’ enumerated powers.  Unfortunately, Congresswoman Bachmann, Speaker Gingrich, and Governor Pawlenty all declined to explain to TIR why they would appoint originalist judges while at the same time “advance and sign” legislation that violates the original public understanding of the Constitution.  Congressman Latham’s office also declined to explain which enumerated power he would cite for congressional action, while Congressman King told TIR that the Interstate Commerce Clause would likely give Congress the authority, though he cautioned he would have to look closely at this issue.

Bachmann’s silence is particularly odd, given that she, along with Ron Paul, co-sponsored the Enumerated Powers Act which would require that “each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act.”  Proclaiming herself to be a constitutional conservative, she also quotes the Republican Pledge to America for the proposition that:  “We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored…”

Senator Santorum did respond to TIR inquiries, stating that “I do not believe the protection of innocent life violates originalist understandings of the Constitution, period.  Indeed, I believe the Constitution is meaningless if innocent life is considered unprotected.”  This is no more convincing than saying one believes the Constitution is meaningless if “marriage equality is considered unprotected,” or “millions of Americans are without affordable health insurance,” or “there are starving kids in the street.”  Declaring something an important virtue does not transform it into a federally constitutionally-enumerated end.

Congressman Paul, who recently declared that “I can defend everything I do by the Constitution,” told TIR that, while the “Pain-Capable Unborn Child Protection Act is not perfect legislation…I would sign the Unborn Child Protection Act and encourage my fellow pro-life leaders to vote for it. I voted for the partial birth abortion ban despite similar commerce clause concerns because the issue has been federalized by our courts and the moral imperitive [sic] to ban such an abhorent [sic] practice was so strong.”

The only potential cure Congress could apply to the “federaliz[ation]” of the issue is to remove the jurisdiction of federal courts to hear abortion cases.  In fact, Congressman Paul has introduced, without any co-sponsors, the Sanctity of LIfe Act of 2011 in which “Congress recognizes that each State has the authority to protect lives of unborn children residing in the jurisdiction of that State” and strips federal courts of jurisdiction to rule State abortion bans unconstitutional.

Though this would effectively overrule Roe while simultaneously preserving the doctrine of enumerated powers, Congressman Paul now feels it politically expedient to join Senator Santorum in making an exception to the original public understanding of the Constitution because of “the moral imperitive [sic] to ban such an abhorent [sic] practice.”  Such a “moral imperative” exception to the Constitution, however, knows no limits, and Congressman Paul refused to assure TIR that he would use this exception to only advance pro-life legislation.

Despite our desire to advance the pro-life cause, the Constitution, as previously noted, doesn’t simply establish perimeters on the power of the federal government when we dislike a particular bill.  Rather, its boundaries are firm and unchangeable no matter how much we would like to make an exception “just this one time.”

Certainly federal candidates should pledge to pursue Congressman Paul’s Sanctity of Life Act of 2011 and/or a constitutional amendment overturning Roe, but they shouldn’t seek to overturn an unconstitutional court decision by in turn using unconstitutional congressional power.  The Constitution imposes road blocks on Congress which must be enforced regardless of personal desires.  That is the hard task of the law.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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