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Criminal Abortion Law in a Post-Roe World

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Written by: Bree McKenna

Conclusion and Areas for Further Research

In the absence of Roe’s constitutional constraints, there is a complex web of criminal state abortion laws. Zombie laws and trigger laws are worthy of study as they could potentially be
enforced from the moment Roe is overturned. While this paper focused on these two types of law, there are other abortion laws that fall somewhere in between. Five states—Georgia, Iowa,
Ohio South Carolina, and Alabama–have post-Roe laws that would ban or restrict some or all abortions in the absence of Roe.
These statutes warrant exploration. On the other hand, there
are thirteen states that have passed laws explicitly protecting abortion access. This warrants exploration as well.





Part III: Criminal Abortion Law in a Post-Roe World

With Dobbs looming on the Supreme Court’s calendar, many are left wondering: what exactly will happen if Roe is overturned or substantially modified? Without Roe’s constitutional restraints, abortion law becomes whatever the federal government and States decide it to be. To assess what the post-Roe criminal law landscape could look like, this paper considers existing and potential federal laws regulating abortion; pre-Roe state laws that will re-emerge; and post- Roe laws that will take effect for the first time.

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A. Existing and Potential Federal Criminal Abortion Laws

Without Roe, Congress may try to pass federal laws regulating abortion. Depending on the political leanings of Congress, the content of the law could go either way: Congress could pass a law that protects abortion in all states across the board, or it could do the opposite and restrict abortions nationwide. It is first worth considering whether, constitutionally speaking, Congress has the authority to regulate abortion at all. Under federalism, the federal government is one of enumerated powers. The Constitution gives Congress the right to create criminal laws only in very narrow circumstances: Congress can enact criminal laws relating to counterfeiting, piracy and crimes on the high seas, and offenses against the Law of Nations, and it may determine the punishment for treason. However, Congress also has the power to pass any laws that are necessary and proper for it to execute its other powers. Congress frequently roots its legislation, including public health legislation, in the Commerce Clause. The Commerce Clause gives Congress the power to “regulate commerce…among the several States.” To find that this gives Congress power to restrict an abortion procedure done at a local clinic seems like a stretch, but may not be so far-fetched when some of the Supreme Court’s other Commerce Clause cases are taken into consideration.

In Gonzales v. Carhart, the Court upheld a federal abortion law–the Partial-Birth Abortion Ban Act of 2003—without explicitly deciding whether Congress had the right to pass the law under the Commerce Clause. In 2015, Congress considered Pain Capable Unborn Child Protection Act, which would prohibit most abortions performed after 20 weeks from conception.84 The proposed law would establish a criminal offense for performing or attempting to perform an abortion if the probable post-fertilization age of the fetus is 20 weeks or more; individuals who violate the law could be punished with a fine or a five year prison sentence. In the Act’s findings, the authors claimed that this law would fall under Congress’s Commerce Clause Powers. However, it is unclear if this justification would hold up. Jonathan Adler compares the law to other laws that the Court has found valid under the Commerce Clause:

Unlike the prohibition on the possession and use of marijuana upheld in Gonzales v. Raich, PUCPA is not part of a broader economic regulatory scheme, nor is it “necessary and proper” to facilitate the execution of other, economically oriented regulations.
Further, unlike the federal partial-birth ban, PUCPA lacks a jurisdictional element that would confine its reach to those instances of abortion clearly within the scope of the Commerce Power.


While the Commerce Clause is broad, it has limits. Commerce Clause authorization aside, the law failed to pass in 2015; it was reintroduced to Congress for the fifth time in 2021, and only
time will tell whether the bill will ever become law.

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Assuming that Congress does have the power to pass federal criminal abortion laws under the Commerce Clause or another enumerated power, both houses of Congress need to agree upon a proposed bill in order for it to become enforceable law.88 With the current composition of Congress, it is unlikely that Congress would be able to pass any kind of abortion legislation. The number of women in Congress is currently at an all-time high, with 123 women serving in the House of Representatives (including 3 Delegates and the Resident Commissioner) and 24 women in the Senate. Since access to abortion is an issue that directly affects the lives of many women, one might expect that more women in Congress would lead to the passage of more federal legislation that protects abortion. At the same time, 88% of Congress members are Christians. Many Christians do not support abortion, as they consider it to be murder and thus against their religious beliefs. The clearest indicator of one’s views regarding abortion may be one’s political affiliation. Republicans tend to oppose abortion protections. Of the 435 representatives, 214 are Republicans (including 1 Delegate and the Resident Commissioner of Puerto Rico).In other words, Democrats have a narrow majority. However, the Senate is nearly split down the middle, with 50 Republicans, 48 Democrats, and 2 Independents (who caucus with the Democrats). In September of this year, the House passed Women’s Health Protection Act.

The Act:

would protect a person’s ability to decide to continue or end a pregnancy and would enshrine into law health care providers’ ability to offer abortion services “prior to fetal viability” without restrictions imposed by individual states, like requiring special admitting privileges for providers or imposing waiting periods. It also would prohibit restrictions on abortion after fetal viability “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.

As expected, the bill passed along party lines. However, the passage of this proposed bill was
largely symbolic, as it has little chance of passing through the Senate; all Democrats and two
Republicans would need to back the bill in order to beat a filibuster.

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One existing federal abortion law worth mentioning is the Hyde Amendment. The Hyde
Amendment, first passed in 1977, bars the use of Medicaid funds for abortion except to protect the life of the woman. The Supreme Court upheld the constitutionality of the Hyde Amendment. TURN PAGE >>

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