Integrity Fail: Republicans Pass An Anti-Abortion Bill, Thus Undermining Their Argument Against Unconstitutional Overreach By Democrats

I bet this guy is a Republican.

I bet this guy is a Republican.

The bill the Republicans in the House just passed to ban abortions after 20 weeks undermines every argument the party has made against the abuse of the Constitution’s Commerce Clause to allow the federal government to meddle in state matters. One’s position on abortion isn’t relevant to the ethics and law here: I agree whole-heartedly with the ban in principle.

Abortion isn’t commerce, however. For decades, the Commerce Clause’s provision giving Congress the power to “regulate commerce . . . among the several states” has been stretched beyond all reason and the limits of language by Democratic majorities.  It has been conservative legislators, scholars and pundits who have screamed about it. Indeed, this was the primary basis for the attack on Obamacare in the Supreme Court case NFIB v. Sebelius, and the majority did find that the so-called “individual mandate” exceeded Congress’s Commerce Clause limitations.

The abuse of the Commerce Clause has been the primary means by which the Founders’ intentional restraints on federal  government power over the states and individuals have been circumvented by big government advocates. Some of the measures that were ingeniously slipped by the Commerce Clause using dubious justifications have been necessary and beneficial, like Federal laws against discrimination. Those measures, however, greased an ever-slipperier slope that has made the Clause a virtual nullity.

Supposedly, Republicans believed that it was important to start taking the Constitutional limits on Congressional power seriously again, because the alternative would be a Congressional dictatorship over the states. Now we know that the Republicans are just as willing to trample the Commerce Clause as Democrats are, as long as their pet social issues are being served.

The word for this is hypocrisy. Another one is stupidity. If you won’t abide by your own principles, nobody should do anything but laugh when you raise those principles in arguments against your adversaries.

Here is Jonathan Adler, Constitutional scholar, explaining why the House has no business regulating abortion:

For even if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure. The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states….

Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce “among the several states.” As Glenn Reynolds notes, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.” For this reason, conservative Republicans who urge courts to respect the limits on federal power — and who argued the individual mandate exceeded the scope of Congress’ Commerce Clause power — should be embarrassed to support the invocation of commerce here…

[S]tate laws failing to regulate abortion as much as Congress might like are really no different than state laws allowing lethal self-defense in the home or doctor-assisted suicide. Whether or not to prohibit abortion 20 weeks after conception is not a question the federal government is empowered to address. Under our constitutional structure, such questions are the province of the states.

This appears to be a Republican specialty: impressively wielding conservative governing principles when they support their policy convictions, then abandoning them at will  to pursue a conservative social agenda. This does not position the party’s standard bearers well when they want to call attention to a particularly cynical and principle-free big-government Democrat like Hillary Clinton. Integrity is a missing character trait among our national leaders, and without it, trust is impossible. Without trust, democracy falters.

As we have seen.

I don’t know why the importance of displaying integrity is so hard for Republicans to grasp, but obviously it is.  The other problem is incompetence. These people  really think it makes make sense to disarm one of the party’s strongest arguments against federal government abuse of power in order to pass a bill that will be vetoed anyway.


Pointer: Instapundit


13 thoughts on “Integrity Fail: Republicans Pass An Anti-Abortion Bill, Thus Undermining Their Argument Against Unconstitutional Overreach By Democrats

  1. There is so little difference between the two parties that we should not be surprised that they use/abuse power in similar ways. To me the lesson really is that a slippery slope is no place for anyone to build a strong belief system. My father, (who I adored as a child, but thought was hopelessly conservative and reactionary when I was in the dangerous 14-24 year old age group) made the point over and over again that chipping away at the constitution would eventually cause the whole thing to collapse. I am so convinced by now that he was right. How can even the best intentioned people resist prying away at the slightest opening when they think they have right on their side? And I’d suggest that politicians are rarely the best intentioned people.

  2. Very much like the argument for repealing Obamacare, even though such a repeal would have been instantly vetoed by its founder and biggest cheerleader…”Well, at least we tried”. I can’t help but wonder if they would have passed this bill if Obama had looked like he would have approved it? I suspect not, adding the specter of hypocrisy to the lack of ethics clearly demonstrated.

  3. Passing the law like that is cowardly. Do it as a Constitutional Amendment. Ban all abortions except to save the mother’s life.

    What?! It won’t pass? Then shut up and start working on ways to make it passable, but cut it off with the grandstanding. Educate people, have a debate, encourage state level regulation, advocate to have Roe revoked, anything is better than this stupid proposal.

        • Here is a comment on the WP site.

          If one is playing by the current SCOTUS rules, one would have to ask if any of the equipment used to perform the abortion has ever been sold across state lines or whether any of the profits, say by Planned Parenthood, move across state lines, like those of the medical or insurance industries.And unlike Sebelius where a major question was whether economic inactivity was reachable, a procured abortion is quintessentially economic.

          Now perhaps Adler is simply making an originalist point of what should be, say prior to West Coast Hotel and Wickard. But few believe that the Court could suddenly turn on the dime and start distinguishing commerce from agriculture and manufacturing and then replace the substantial effects doctrine with a narrow read of only enabling the regulation of interstate commerce. Five Thomas’s on the bench is quite unlikely. So at best SCOTUS can be counted on for “this far and no father”. The rest must be accomplished by Article V. Until then why should Conservatives ignore the current state of the Law? Adler’s not clear on this.

          – AJ Liberty

          • If the courts are going to allow the department of Education to send out binding dear colleague letters, if the EEOC is going to rule schools and companies need to allow biological males use the women’s rooms if they so choose, and the courts uphold them. Then the only conclusion I can draw is that conservatives should respect the law as interpreted by the courts. And pass legislation accordingly.

            – Kashole

  4. Sheesh. This is not only unconstitutional, but stupid as well. Are they trying to lose the next election? It makes me want to bang my head against the nearest wall.

    This reminds me of a classification of military officers I’ve read about a few times. It goes something like this:

    You have officers who are bright and energetic: These are the ones you want running the army.

    Then there are those who are bright and lazy. Good but self limiting.

    Those who are stupid and lazy — bad, but you don’t really have much to worry about.

    Then there are those who are stupid and energetic: These are the ones who can ruin your army (and country).

    Guess where these Republicans are placing themselves?


  5. The bill in question is known as “House Resolution 36” (A copy is available here:

    While I agree the “Commerce Clause” would be a dubious justification, I think the “Equal Protection Clause” of the 14th Amendment would still be viable. The bill even explicitly attempts to draw upon this:

    (14) Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.

    A fetus’ rights should not be curtailed by state lines.

    As for this being a test of integrity, I disagree with the characterization of abortion as a “pet social issue”. Abortion is a fundamentally different topic than the “overreaches” Republicans oppose elsewhere. For many, it is the defining social issue of the century (No other group, it is said, has had its right to life as curtailed as the human fetus).

    Abortion restrictions remain an official and fundamental piece of the Republican Party platform. While it is fine to question the strategic timing of this bill (since it is highly likely that the sitting President would refuse to sign it, and/or refuse to enforce if signed or overridden), it would have been a failure of integrity to not push the bill solely to attempt to gain political favor with “… women, independents, and the young.”

    No state has laws that explicitly allow the targeted murder of a certain group. Such laws, if they existed, would fail the Fourteenth Amendment. To combat the explicitly racist enforcement (or lack of enforcement), there is now a recognized federal civil right to life. This bill, here, would seem to indirectly extend this federal civil right to the life of the human fetus after 20 weeks (barring certain external circumstances).

    While the Republicans may decry constitutional overreach of Democrats, many of the alleged overreaches often impact abortion policy. A major criticism of the Affordable Care Act is its incredibly vague policy regarding the public funding of abortion services. There is nothing inconsistent about decrying constitutional overreach in promoting abortion access (even if one must resort to apparent “overreach” to limit abortion access).

    Many further genuinely believe that Roe vs. Wade was incorrect; that by presenting new evidence, the constitutional status of abortion could be legitimately be reconsidered. If a future Court finds such new evidence to be compelling, then Congress would have an duty to protect any new civil rights that the fetus is found to possess. House Resolution 36 seems to anticipate such a future ruling; the bill could only be unethical if made in poor faith, but I do not see this to be the case.

    As a concluding thought, abortion is an incredibly sensitive topic. Many are reckless in how they speak of it, but I cannot fault the disgust the practice inspires. Challenging and restricting its legality, and indirectly society’s acceptance, has the potential to increase the need for new resources for pregnant women and inspire a tremendous amount of culture-wide guilt. A truly ethical plan to drastically restrict abortion access must account for this cultural shift, such as making available adequate crisis-pregancy and post-abortive counseling services. How such services are administered is open to debate.

    • I said that I agree with the bill’s objective. I call abortion a pet social issue because it is the object of grandstanding by Republicans, and warps both the priorities and agenda of a party that has more responsibilities than opposing a Supreme Court opinion. The party has said that the matter should not be settled by national edict, and then tries to pass a federal law. Again, hypocrisy.

      I do not find the Equal Protection argument persuasive. It’s as much of a stretch as the Commerce Clause justification.

      The best analogy ethically is slavery (except that slavery was commerce beyond question.) A change wasn’t possible until the culture changed and public opinion turned…that can’t be accomplished by Congressional edict and grandstanding. Abortion needs its Harriet Beecher Stowe, and stunts like this bill just impede finding one.

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