Carolyn McDonnell, M.A., J.D. and Regina Maitlen, J.D.
For nearly fifty years, Roe v. Wade has infringed upon the democratic process and hindered Congress’ ability to pass pro-life legislation. Roe v. Wade and Doe v. Bolton nationalized abortion by imposing the Supreme Court’s own regulatory framework on an issue that was historically a matter for the People, who could express their will through their elected representatives. In spite of Roe, thankfully, Congress showed leadership by limiting abortion through legislation like the Hyde Amendment,[i] the Partial-Birth Abortion Ban Act,[ii] the Born Alive Infants Protection Act,[iii] as well as numerous provisions protecting pro-life healthcare professionals[iv] and prohibiting federal funding of abortion.[v]
Even as we move into a post-Roe world, some proponents view abortion as a state-level issue without room for Life-affirming federal legislation. Of course, Americans United for Life wholeheartedly embraces state solutions to protecting Life—in fact, we author many pro-life bills at the state level. Federal strategies, however, provide an original solution to protect unborn children, mothers, and families in even the most anti-life states.
The pro-life movement is no longer restricted by Casey’s undue burden standard or Roe’s arbitrary viability line. We can think creatively and critically about how to defend Life under the Constitution. Since the Constitution is the “supreme Law of the Land,”[vi] even anti-life states that have concocted a state constitutional abortion right must follow federal law. Because of Congress’s leadership, no federal funds can be used for elective abortion, and the horrific practices of partial-birth abortion and leaving born-alive infants to die without care are banned in all fifty states. Congress should continue to enact life-affirming legislation to protect mothers and unborn children from the harms of the abortion industry.
The Framers of the Constitution intended the federal government to be limited in power while the states retained primary authority to govern. James Madison is well known for supporting federal rights as “essential to the happiness of America,”[vii] but Madison also insisted that the Constitution would not “derogate from the importance of the governments of the individual states.”[viii] In keeping with this design, the federal government’s powers were originally few and mostly concerned with matters of “war, peace, negotiation and foreign commerce.”[ix] On the other hand, the states retained “numerous and indefinite” powers that “extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…”[x] However, with the passage of the Fourteenth Amendment after the Civil War, Congress’ limited powers were modified and expanded. The federal government, through the Fourteenth Amendment, was granted the power to protect citizens and persons against certain states’ actions.
Over the past century, the Framers’ limited federal government constitutionalism has been increasingly forgotten as provisions such as the Commerce Clause have been interpreted broadly to permit whatever Congress deems “necessary and proper” to its authority.[xi] Pro-life measures have been enacted, but Congress has also federalized protections for abortion clinics through the FACE Act,[xii] and has tried to codify “abortion rights” in the Women’s Health Protection Act[xiii] using the Taxing and Spending Power.[xiv]
The strongest, if not most difficult, approach to protecting human life is to amend the United States Constitution with AUL’s Abortion Abolition Amendment. Under Article V, two thirds of the U.S. Senate and House of Representatives may propose an amendment, or two thirds of the states may call a convention for proposing amendments. Afterwards, the legislatures of three fourths of states must ratify the amendment or three fourths of state conventions must ratify it. AUL’s Abortion Abolition Amendment would protect human life from its earliest stages.
Congress also can protect human life through life-affirming legislation. Today, there are five possible sources of constitutional power by which Congress might act to protect prenatal children: the Commerce Clause, the Territorial Powers Clause, the Spending Power, the Mail Power, and the enforcement provision of the Fourteenth Amendment.
I. The Power to Regulate Abortion “Commerce”
The Commerce Clause is the strongest prospective source for successful federal policy restricting abortion. While not unlimited, Congress’s authority to “regulate commerce … among the several states” is vast.[xv] This power has been interpreted to reach activities that “have a substantial effect on interstate commerce.”[xvi] In the late nineteenth and twentieth centuries, Congress often exercised Commerce Clause authority to address numerous vices. For instance, since 1910, the Mann Act[xvii] has prohibited transporting women across state lines for immoral purposes. Federal lottery laws prohibit interstate trafficking in lottery tickets.[xviii] And most germane to the abortion controversy, mailing abortion-inducing drugs and promotions for chemical abortion has been illegal under federal law for decades.[xix]
Under the Commerce Clause, Congress may regulate (1) interstate commerce channels, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) activities that have a substantial effect on interstate commerce. [xx] “The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collection from a neighborhood butcher shop.”[xxi] Congress employed the Commerce Clause to enforce anti-discrimination laws and desegregation decrees on any establishments that “affect interstate commerce.”[xxii]
The Commerce Clause power is not unchecked, however. The Supreme Court held in United States v. Lopez that Congress had exceeded its power when it enacted the Gun-Free School Zone Act, which criminalized possession of a firearm in school zones. The act was held unconstitutional because merely possessing a gun did not involve economic activity or have a “substantial relation” to interstate commerce.[xxiii] Thus, federal legislation under the Commerce Clause power must clearly constitute a regulation of economic commerce. Likewise, in United States v. Morrison,[xxiv] the Court invalidated the civil damages provision of the Violence Against Women Act on the ground that that Congress could not regulate noneconomic activity (assault) that has traditionally been dealt with by state laws.
While Lopez and Morrison remain good law, the Court’s Commerce Clause requirements eased slightly with Gonzalez v. Raich,[xxv] which held that Congress has the power to regulate commerce among the states to prohibit the cultivation and possession of small amounts of marijuana. Congress needs only a rational basis for believing that an activity has a substantial effect on interstate commerce and the regulation of noneconomic intrastate activity is constitutional if the activity is part of a broader regulatory scheme.[xxvi] Perhaps most relevant to the abortion controversy, Raich regulated marijuana even though it was only legalized in some states and not others. Therefore, in spite of the fact that some states permit abortion while others prohibit it, abortion is still within the congressional power to regulate.
Certainly, the provision of abortion constitutes “commercial activity.” Women travel across state lines to procure abortion services, doctors and nurses enter various states to perform abortions, and medical equipment and medicine move throughout interstate commerce. Therefore, the means of abortion may be regulated through the Commerce Clause, as commerce includes all phases of business.[xxvii] Congress could also seek to regulate all abortion procedures because they are economic in nature. Between 2013 to 2015, Planned Parenthood received over $1.5 billion in taxpayer funds. For 2020, Planned Parenthood earned $1.68 billion in revenue. Abortion procedures are “commerce” because they are the voluntary sale of a service in a market-based enterprise. Congress used its authority under the Commerce Clause to enact the Partial Birth Abortion Ban, and strategically wrote the act to only apply to physicians “in or affecting interstate or foreign commerce.”[xxviii] This same rationale and wording could be written into a law that limits abortion.[xxix]
Under the Commerce Clause, Congress could pass legislation to protect women seeking abortion-inducing drugs. Chemical abortion now makes up more than half of abortions in the United States.[xxx] Yet, abortion-inducing drugs present unique challenges as abortionists move to de-medicalize the practice and push the dispensing of chemical abortion by mail. Women need an ultrasound screening to check for an ectopic pregnancy, which is a contraindication for abortion-inducing drugs. If a woman has Rh negative blood type, she needs a RhoGAM shot, otherwise she may have complications or miscarry a future pregnancy. Telemedicine also increases the difficulty for screening for domestic abuse, reproductive control, human trafficking, and other signals of coerced abortion. Since the Food and Drug Administration abandoned basic protections for women that its approval of chemical abortion had previously been conditioned upon,[xxxi] Congress should consider stepping into the gap to express its commitment to women’s safety.
Congress has previously regulated transportation of “any woman or girl for the purpose of prostitution or debauchery or for any immoral purpose”—the very definition of illegal trafficking—under the Mann Act.[xxxii] The Act would have been a sufficient way to pursue criminal charges against those transporting women for abortions. However, the most recent version of the act is specific to “any sexual activity for which any person can be charged with a criminal offense.”[xxxiii] The Mann Act is primarily used now to pursue criminal charges for kidnapping, coercion, child pornography, child prostitution, or the transportation of a minor—all related to sexual activity. While the Mann Act does not apply to abortion as currently written, it does demonstrate that Congress has the power to regulate and criminalize the transportation, arrangement, or assistance of women seeking abortions across state lines, especially where coercion or trafficking of minor girls is involved.[xxxiv]
In the last two decades, Congress has repeatedly sought to invoke the Commerce Clause and its jurisprudence to introduce the Pain Capable Unborn Child Protection Act.[xxxv] This Act would prohibit abortions after twenty weeks. Congress stated its authority to extend protection to pain capable unborn children comes from the Supreme Court’s Commerce clause precedents and Constitutional grant of powers under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.[xxxvi]
As it considers how best to expand protection to human life in the womb, Congress should conduct hearings and make findings regarding how the provision of abortion affects interstate commerce. Congress’ findings substantially bolster the constitutional argument for Commerce Clause authority, especially as against the argument that “no such substantial effect [is] visible to the naked eye.”[xxxvii] Congress should also make clear that the area is economic in nature, that the regulation is part of a comprehensive regulatory scheme, and that the link between abortion activity and commerce is not too “attenuated.”[xxxviii]
II. Restricting Abortion in U.S. Territories
The Territorial Powers Clause grants Congress authority to limit or regulate abortion in Washington, D.C., and other U.S. Territories. Our nation’s capital has an expansive anti-life law, deeming abortion a “human right” and legally enshrining an unqualified “right of every individual . . . to have an abortion,” while providing virtually no health and safety safeguards for the practice.[xxxix] D.C. government officials are vehement anti-life proponents, and regularly voice their support of abortion.
Yet, Congress has the constitutional authority to safeguard women’s informed consent, establish health and safety standards for abortion businesses, and secure gestational protections for unborn children. Under the Territorial Clause, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”[xl] This power is broad, and Congress can use its power to protect Life in Washington, D.C., and other territories. Congress would be able to use their findings from enacting legislation under the Commerce Clause to extend protection to the unborn in the Capital and territories.
For many years, Congress has limited abortion in D.C. through funding restrictions. In 1989, Congress first passed the Dornan Amendment, which restricted the use of appropriated funds and local funds for elective abortion.[xli] Under the Consolidated Appropriations Act, 2022, “[n]o funds available for obligation or expenditure by the District of Columbia government under any authority shall be expended for any abortion except where the life of the mother would be endangered if the fetus were carried to term or where the pregnancy is the result of an act of rape or incest.”[xlii] Congress should consider passing basic informed consent and health and safety provisions to protect women in D.C., as well as gestational limits to safeguard unborn human life.
III. Spending to Save Lives
The Constitution grants Congress the general power to spend “for the common Defence and general Welfare of the United States.”[xliii] In Butler v. United States, the Supreme Court affirmed Congress’ broad power to spend for the general welfare as long as another constitutional provision is not violated, that the Constitution conferred a “power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and appropriate, limited only be the requirement that it shall be exercised to provide for the general welfare of the United States.”[xliv]
Congress’ expansive authority has been affirmed in subsequent cases such as South Dakota v. Dole.[xlv] Dole upheld Congress’ ability to place conditions upon funding to provide financial incentives for states to comply with federal policy. The “constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly.” [xlvi] Congress is limited in its exercise of the Spending Clause by Dole’s five factors: 1) the expenditure must promote the public welfare; 2) any conditions imposed through the spending power must not be ambiguous; 3) conditions must reasonably relate to the purpose of the expenditure; 4) the legislation cannot violate any independent constitutional rights of the recipient; and 5) the conditions must not be unconstitutionally coercive.[xlvii]
The cornerstone of federal pro-life policy pursuant to the Spending Clause is the Hyde Amendment, which has been included in every federal health and welfare appropriations bill since Congressman Henry Hyde first proposed it in 1976. The Hyde Amendment has relied upon the Spending Power to prohibit federal funding for elective abortions through Medicaid and all other programs administered by the Health and Human Services Administration (HHS). Under the Hyde Amendment, recipients of federal funds cannot use the money to pay for abortions except for medical emergencies and in cases of rape or incest. By withholding a financial incentive for elective abortions, the Hyde Amendment has been credited with saving 2.13 million lives.[xlviii] Public opinion reflects strong popular support for they Hyde Amendment, as 54% of Americans oppose taxpayer funding of abortion.[xlix] In 1980, the Supreme Court upheld the Hyde Amendment as constitutional.[l]
Unfortunately, Congress must re-enact the Hyde Amendment in every HHS appropriations bill. In recent years, there have been impassioned political debates about whether to retain the Hyde Amendment. As we leave Roe behind, Congress should explore codifying the Hyde Amendment under its Spending Clause authority to strengthen protections for taxpayers’ conscientious objections to abortion.
Similar to the teenagers in Dole, it is not uncommon for women to cross state lines to seek abortions whether it be due to late term abortions, parental consent or notification laws. In order to avoid nationwide confusion and promote the general welfare, Congress has a reasonable basis to encourage states to adopt uniform abortion limits and regulations. The funding must be unambiguously attached to appropriate funding such as a Title X or other health related program. However, the conditional funds must not be so coercive that the state has no choice. For instance, Congress would want to attach the provision to a small percentage of the funding.
Congress should also consider appropriate financial assistance to pregnancy resource centers under its Spending Clause power.[li] From providing diapers and formula to performing ultrasounds and offering parenting education classes, pregnancy resource centers help women, children, and families both during and after a pregnancy. As we move into a post-Roe world, we must bolster these centers, so women know they have community support and a real alternative to abortion.
Congress should also strengthen conscience protections for pro-life healthcare professionals. Protections in federal healthcare programs such as the Church Amendment,[lii] the Coats-Snow Amendment,[liii] and the Weldon Amendment[liv] are an acceptable baseline but lack a right of private enforcement.[lv] As abortion proponents become more extreme, conscience rights face escalated threats. “Safe, legal, and rare,” has become “my body, my choice,” with virtually no government oversight or room for conscientious objections by healthcare professionals. The abortion lobby views conscientious objections as “refusals” that threaten their purported abortion rights. Congress should move to ensure private enforceability of these provisions and include provisions for liquidated damages and recovery of attorney’s fees and costs.
Ten states have laws protecting abortion. In other states, courts have judicially concocted a state constitutional abortion right. Chemical abortion is on the rise and now accounts for more than half of all abortions in the United States. Abortion-inducing drugs pose new threats to healthcare professionals, especially for pharmacists. Congress should consider passing basic informed consent and health and safety protections for women considering abortion, as well as bolster protections for pharmacists conscientiously opposed to dispensing abortion-inducing drugs.
IV. Protecting Life Through the Mail Power
Article I Section 8 of the Constitution gives Congress the power “to establish Post Offices and post Roads” and “to make all laws which shall be necessary and proper” for executing this task. This power specifically allows Congress to regulate abortions by mail.[lvi]
Additionally, now that Roe is overturned, it is an open question whether Congress might be able to prohibit abortion advertisements. In Bigelow v. Virginia,[lvii] the Supreme Court ruled that states could not ban abortion clinic advertisements as these bans were in violation of the First Amendment’s right to freedom of speech. Bigelow assumed Roe. In Bolger v. Youngs Drug Products Corporation, the federal law that criminalized unsolicited contraception advertisements was held unconstitutional because it violated the First Amendment’s protection of commercial speech.”[lviii]
V. Ensuring Equal Protection Under the Fourteenth Amendment
Congressional power under Section 5 of the 14th Amendment to “enforce the provisions of [the Fourteenth Amendment],” including the guarantees of due process and equal protection for all “persons”, is quite expansive, albeit circumscribed within the parameters of the rights secured therein. Roe v. Wade held that that the “word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”[lix] This holding was based on the faulty rationale that “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they” were in the mid-20th century. Now that the Supreme Court has corrected that flawed history of abortion, and overturned Roe v. Wade entirely, scholars and advocates are calling for a reconsideration of the scope of the Fourteenth Amendment’s protection for “persons” and Congress’s concomitant power to enforce it.
Although the Supreme Court initially provided a broad interpretation of Congress’ Section 5 authority,[lx] the Court narrowed this power in the Civil Rights Cases, holding that Section Five does not give Congress the authority to regulate purely private parties’ activities.[lxi] Therefore, Congress may only provide redress against the operation of state laws and the actions of state officers. By and large,[lxii] that has been the Supreme Court’s position in the modern era. In United States v. Morrison, for example, the Court reaffirmed the “principle that the Fourteenth Amendment, by its very terms, prohibits only state action.”[lxiii]
Moreover, in City of Boerne v. Flores, the Court held that Congress cannot use its Section 5 authority to create or expand new rights and can act only to prevent or remedy violations of rights.[lxiv] In Boerne, the Supreme Court held that the Religious Freedom Restoration Act was unconstitutional, and that Congress had exceeded its Section 5 powers. Justice Kennedy wrote for the majority, stating that Congress could not alter the meaning of constitutional clauses and that “Congress does not enforce a constitutional right by changing what that right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.”[lxv]
Even though Boerne limits Congress’ powers, since Dobbs reverses Roe’s holding that an unborn child is not a person under the Fourteenth Amendment, it is once again an open question whether Congress can extend protection to unborn children.[lxvi] As a co-equal branch of the federal government, Congress could assert that basic protection for the right to “life” for human beings in gestation as “persons” is guaranteed by the Fourteenth Amendment. “It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’ And its conclusions are entitled to much deference,”[lxvii] the Court affirmed in Boerne.
While Boerne appears to have limited Congress’ power, other instances of Congressional invocation of the Section 5 power have been upheld in a series of cases. For instance, in Tennessee v. Lane, a section of the Americans with Disabilities Act was upheld as a valid exercise of the Section 5 power because persons with disabilities are protected under the 14th Amendment.[lxviii] The Court held that Congress could permit persons with disabilities the right to sue States that discriminated. The Court reasoned that Congress had acted within their authority to protect people’s rights protected by the Due Process Clause. The state just had to make reasonable accommodations to protect these rights. The Act was constitutional because it was a “reasonable prophylactic measure, reasonably targeted to a legitimate end.”[lxix]Similarly, Congress could abolish abortion under the Due Process Clause and have the authority to protect unborn children from state abortion regulations as a legitimate end of protecting a vulnerable population similar to those with disabilities.
Congress’ Section 5 power is “remedial,” not substantive, and “extends only to ‘enforc[ing]’ the provisions of the Fourteenth Amendment.”[lxx] Yet, parental rights have a rich history of constitutional protection under the Due Process Clause. “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”[lxxi] “[Supreme Court] decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”[lxxii] Under a parental rights theory, Congress could protect parents’ rights to be involved in the informed consent process for their minor child’s abortion decision. Courts have invalidated laws requiring parental consent or notification when a minor is seeking an abortion. Other states have provided an unqualified right to pursue abortion, even if the women seeking abortion is underage. This situation has infringed upon the constitutional rights of parents to direct the care and upbringing of their children. Since there is a strong constitutional history of protecting parental rights, Congress could pursue a parental involvement bill under its 14th Amendment Section 5 power.
If the unborn are not persons under the Fourteenth Amendment, Congress has the authority to enact laws that could protect prenatal human beings. Congress could use the Commerce Clause, Territorial Powers Clause, 14th Amendment, Spending Power, or the Mail Power to protect the unborn. Congress has previously used these powers to regulate activity that is similar to abortion or related activity. While Congress’ powers have been limited and expanded, the Court has recently returned to a more expansionist view of Congressional powers which would benefit attempts to significantly regulate abortion—especially after Dobbs.
[i] 42 U.S.C. § 18023.
[ii] 18 U.S.C. § 1531.
[iii] 1 U.S.C. § 8.
[iv] See, e.g., Church Amendment, 42 U.S.C. § 300a-7, Coats-Snowe Amendment, 42 U.S.C. § 238n(a).
[v] See, e.g., 42 U.S.C. § 300a-6 (directing in Title X that “[n]one of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”).
[vi] U.S. Const. art. VI.
[vii] Federalist No. 45 (James Madison).
[xi] See Wickard v. Filburn, 317 U.S. 111(1942) (expanding the federal government’s use of commerce clause power). See also Gonzales v. Raich, 545 U.S. 1 (2005) (permitting Congress to criminalize the production and usage of homegrown marijuana even if state law permits its usage for medical purposes).
[xii] 18 U.S.C. § 248.
[xiii] Women’s Health Protection Act of 2021, H.R. 3755, 117th Cong. (2021).
[xiv] Id. § 2(a)(25).
[xv] U.S. Const. art. I, § 8, cl. 3.
[xvi] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012).
[xvii] 18 U.S.C. §§ 2421 to 2424.
[xviii] 18 U.S.C. § 1301.
[xix] 18 U.S.C. § 1461 bars use of the United States postal service for mailing abortion drugs, including chemical abortion pills. Another federal law, 18 U.S.C. § 1462, applies these provisions to private carriers. Each statute imposes a prison sentence of up to five years for a first offense and up to ten years for each additional offense. Id.
[xx] United States v. Lopez, 514 U.S. 549 (1995).
[xxi] Sebelius, 567 U.S. at 536–537 (discussing Wickard, 317 U.S. 111, and Perez v. United States, 402 U.S. 146 (1971)).
[xxii] Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
[xxiii] Lopez, 514 U.S. at 561.
[xxiv] 529 U.S. 598 (2000).
[xxv] Raich, 545 U.S. 1 (holding that Congress could regulate production of marijuana for home consumption because it had a substantial effect on supply and demand in the national market).
[xxvi] Id. at 22.
[xxvii] Gibbons v. Ogden, 22 U.S. 1, 1 (1824).
[xxviii] 18 U.S.C. § 1531; U.S. Const. art. I, § 8, cl. 3.
[xxix] Regulating abortion procedures or clinics may lead to some tensions as a matter of federalism, as medical issues have usually been left to the states. See, e.g., Pa. Med. Soc’y v. Marconis, 942 F.2d 842, 847 (3d Cir. 1991) (“The licensing and regulation of physicians is a state function. . . . Thus, the state regulation is presumed valid. To rebut this presumption, appellants must show that Congress intended to displace the state’s police power function.”). As the Supreme Court explained in Gregory v. Ashcroft, “[Where] Congressional interference [with a core state function] would upset the usual constitutional balance of federal and state powers[,] . . . it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides this balance.” 501 U.S. 452, 460 (1991) (internal quotation marks omitted) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). However, if abortion is criminalized then it would not be seen as normal medical care – but rather, treated as a crime.
[xxx] Rachel K. Jones et al., Medication Abortion Now Accounts for More Than Half of All US Abortions, Guttmacher Inst. (Feb. 2022).
[xxxi] Katie Glenn, President Biden’s FDA Promotes Abortion Pills at the Expense of Patient Health and Safety, Ams. United for Life (Dec. 17, 2021).
[xxxii] Pub. Law 61-277, 36 Stat. 825 (1910).
[xxxiii] 18 U.S.C. §§ 2421–2424.
[xxxiv] See id.
[xxxv] See, e.g., Pain-Capable Unborn Child Protection Act, S. 61, 117th Cong. (2021); S. 160, 116th Cong. (2019).
[xxxvi] H.R. 36, 115th Cong. § 2(14) (2017).
[xxxvii] Lopez, 514 U.S. at 563.
[xxxviii] United States v. Morrison, 529 U.S. 598, 610–14 (2000).
[xxxix] D.C. Law. 23-90, 67 D.C. Reg. 3537 (2020).
[xl] U.S. Const. art. IV, § 3, cl. 2.
[xli] Jon O. Shimabukuro, Cong. Rsch. Serv., RL33467, Abortion: Judicial History and Legislative Response 23 (2022).
[xlii] Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, tit. VIII, § 810, 136 Stat. 49, 309 (2022).
[xliii] U.S. Const. art. I, § 8, cl. 1.
[xliv] 297 U.S. 1, 65–66 (1936).
[xlv] 483 U.S. 203 (1987).
[xlvi] Id. at 209.
[xlvii] Id. at 207–208.
[xlviii] Michael J. New, Hyde @ 40: Analyzing the Impact of the Hyde Amendment with July 2020 Addendum, Charlotte Lozier Inst. (June 17, 2021).
[xlix] New Knights of Columbus/Marist Poll: A Majority of Americans Support Legal Limits on Abortion, and Oppose Taxpayer Funding, Knights of Columbus (Jan 20, 2022).
[l] Harris v. McRae, 448 U.S. 297 (1980).
[li] U.S. Const. art. I, § 8, cl. 1.
[lii] 42 U.S.C. § 300a-7.
[liii] 42 U.S.C. § 238n.
[liv] See, e.g., Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, div. H, tit. V § 507(d)(1), 134 Stat. 1182, 1622 (2020).
[lv] Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, 9972 (Feb. 23, 2011) (“While the longstanding Federal health care provider conscience protection statutes have provided protections for health care providers, there was no clear mechanism for a health care provider who believed his or her rights were violated to seek enforcement of those rights. To address these comments, this final rule retains the provision in the 2008 Final Rule that designates the Office for Civil Rights (OCR) . . . to receive complaints of discrimination and coercion based on the Federal health care provider conscience protection statutes.”).
[lvi] Ex Parte Jackson, 96 U.S. 727, 732 (1877) (“The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.”).
[lvii] 421 U.S. 809 (1975).
[lviii] 463 U.S. 60 (1983).
[lix] 410 U.S. 113, 158.
[lx] See, e.g., Ex parte Virgina, 100 U.S. 339 (1879). In Ex Parte Virginia, the Court held that “whatever legislation is appropriate…to carry out the objects the amendments have in view . . . and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws . . . if not prohibited, is brought within the domain of congressional power.”
[lxi] See the Civil Rights Cases, 109 U.S. 3 (1883).
[lxii] But see United States v. Guest, 383 U.S. 745 (1966) (holding that a criminal conspiracy affecting an individual’s right of free interstate passage violated the Equal Protection Clause).
[lxiii] Morrison, 529 US 598.
[lxiv] 521 U.S. 507 (1997).
[lxv]Id. at 519-520. City of Boerne has remained controversial among scholars. Critics argue that the Court has denied Congress the power to expand the scope of rights. The debate has centered around proper interpretation of Section 5 arguments, the intent of the Fourteenth Amendment drafters, and policy questions of separation of powers and federalism. See Evan H. Caminker, “Appropriate” Means-Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 1127 (2001).
[lxvi] Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022).
[lxvii] Boerne, 521 U.S. at 536.
[lxviii] Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (providing limited 14th Amendment protection to those with disabilities as the state did a not a legitimate governmental interest in denying a permit application for a home for the mentally disabled.).
[lxix] Tennessee v. Lane, 541 U.S. 509 (2004).
[lxx] City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (citation omitted) (alteration in original).
[lxxi] Wisconsin v. Yoder, 406 U.S. 205, 233 (1972).
[lxxii] Moore v. E. Cleveland, 431 U.S. 494, 504 (1977).