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Port: A national abortion ban isn't any more constitutional than Roe v. Wade was

Abortion became a hugely contentious issue because the courts took away our ability to answer this policy question through the democratic process. The last thing we need is for Congress to similarly rob us of that ability.

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Demonstrators hold signs outside the U.S. Supreme Court on June 27, 2016.
Kevin Lamarque / Reuters
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MINOT, N.D. — For decades after a previous iteration of the U.S. Supreme Court, with the Roe v. Wade decision, struck down state-level abortion bans, conservatives have argued that the ruling was unconstitutional.

We were right, as the current iteration of the court recognized in the Dobbs decision. Not one clause, section, or article was written into the U.S. Constitution with the intent to create a right to an abortion. The courts operate outside of their constitutional mandate when they manufacture new rights with judicial fiat.

With its original Roe decision, the Supreme Court stepped on state sovereignty. Whatever your position on abortion, overturning Roe was a victory for American federalism.

But now some Republicans are abandoning the federalist argument on abortion to pursue a federal-level abortion ban.

I'm talking about Sen. Lindsey Graham's proposed 15-week abortion ban . His policy would let more severe restrictions on abortion, such as North Dakota's near-total ban, stand as law, but it wouldn't allow any state to permit abortions after 15 weeks.

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What Graham intended, I think, was to try and organize Republicans around a more moderate view on abortion that is palatable to a larger swath of the American electorate. From that perspective, it's not a bad idea.

Poll after poll tells us that a 15-week ban is in the ballpark of what most Americans want when it comes to abortion policy.
According to extensive research by the Pew Foundation only 19% of Americans, including just 21% of women and just 30% of Democrats, think abortion should be legal in all instances without restrictions. Just 8% believe the opposite, that abortion should be illegal in all instances. A 56% majority, including 55% of women and 52% of Democrats, believe the length of time a woman should be pregnant should matter in determining whether abortion should be legal.

A 55% majority are supportive of abortion bans beginning at 14 weeks.

What Graham is proposing is in line with what I support. I don't think total abortion bans are workable, as a practical matter of law. A 15-week ban seems a good compromise. But there remains the question of federalism.

I know it's a bit old-fashioned of me to insist on consistency in this age when principles are situational, and pliable for the sake of expediency, but the federal government has no more authority, under the Constitution, to implement a national ban on abortion than it making state-level abortion bans illegal.

No part of the Constitution gives the federal government this authority. The Constitution, as the Supreme Court found in the Dobbs decision, and as is clear to anyone who has ever read the document, says nothing about abortion.

Thus, it is a policy to be decided by the states, not Congress. As the 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

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This isn't about Romanick's views on abortion, though they are palpable at this point. This is about his inability to recognize the limits of the judicial branch's powers.

Abortion became a hugely contentious issue because the courts took away our ability to answer this policy question through the democratic process. The last thing we need is for Congress to similarly rob us of that ability.

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Some states have chosen total bans on abortion, which are foolish and extreme and poor policy.

Other states may choose a stance on abortion so permissive that it allows them right up to a mother's due date, a position that is similarly foolish and extreme.

But whatever position the states take, it should be up to those states, and the people who live there, who will engage in legislative bills and ballot measures all aimed at shaping policy around this most controversial of issues.

It will be hard, but this is what our system of federalist democracy demands of us.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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