Roe’s End Spurs a Lawmaking Renaissance

The decision of the Supreme Court to hand the question of abortion back to the state and federal legislatures has started America’s legislative gears whirring — to an astonishing degree. It’s not just the decision in Dobbs v. Jackson Women’s Health. That is the case in which the high court declared: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” It’s also the one-man concurrence by Justice Clarence Thomas, who called for the court to go review other rights — same-sex marriage, and intimate same-sex relations — vouchsafed through the doctrine called substantive due process, which finds in the 14th Amendment a host of unenumerated rights. The legislative process that has already begun to whir in Dobbs’s wake is occurring at both the federal and state levels. In the House, several measures are being looked at, including one to deny the Supreme Court any jurisdiction over abortion. That notion, rooted in the Constitution’s Exception Clause, allows Congress to strip the high court of its ability to review certain kinds of cases. This argument for curating the court’s judicial circumference when it comes to “marriage equality, non-procreative intimacy, and contraception” has been proposed by Representative Alexandria Ocasio-Cortez.Plus, too, in the states America is seeing a profusing of legislative efforts, some of which began even before Dobbs was handed down. In 13 states, anticipatory or “trigger” laws were passed outlawing abortion as soon as the Supreme Court would allow it. Beyond that first spasm of lawmaking, a burst of legislation at the state level is reshaping the legal landscape. Florida in April passed a law banning abortions after 15 weeks, though that is being challenged in court on the basis of a state constitutional right to privacy. The law was first blocked, but has now been reinstated. In Kansas, courts in 2019 found that same right in their founding parchment, but plan to hold a referendum on a constitutional amendment to ban abortion on August 2. The website 538.com reports that the race will be close. In November, Californians will vote on a ballot measure to enshrine abortion rights in law.The strictest abortion regime in the nation belongs to Oklahoma, where the procedure is allowable only to save the life of a pregnant woman or if the pregnancy is the result of rape or incest that has been reported to law enforcement. At the other end of the spectrum, Oregon has virtually no abortion restrictions. While Dobbs has liberated the states to live up to Justice Louis Brandeis’s descriptions of them nine decades ago as “the laboratories of democracy,” it has also kicked a gridlocked Congress into gear. Here, too, Justice Thomas’s concurrence has catalyzed constitutional questions into congressional ones. Senator Cruz welcomed Justice Thomas’s invitation to think on precedent anew, opining that “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history.” Ms. Ocasio-Cortez issued a letter to her party’s leadership to strip the court of its jurisdiction to decide cases that touch on substantive due process rights. While that constitutional maneuver appears to be a longshot, other responses are beginning to bear legislative fruit. The House this week passed the Respect for Marriage Act to codify Obergefell by a 267-to-157 tally, with 47 Republicans signing on, including Representatives Elise Stefanik and Elizabeth Cheney. The House minority leader, Kevin McCarthy, voted “nay.”The measure, which would repeal the Defense of Marriage Act and require the federal government to recognize marriages deemed legal by the states in which they were performed, faces an uncertain senatorial future. The majority leader, Charles “Chuck” Schumer,” has taken to lambasting “a MAGA, right-wing extremist Supreme Court.” The Defense of Marriage Act of 1996, which enshrined into law the definition of marriage as the union between a man and a woman, was overturned by Obergefell. It was passed by a veto-proof majority and signed into law by President Clinton. President Biden, then a senator, voted for the bill, as did Mr. Schumer. They both now support its repeal. Gay marriage is not the only issue on which Congress its bestirring itself. This week also saw the lower chamber pass two abortion bills. The first, which squeaked by along a largely party-line 222-to-205 vote, would protect the right to travel across state lines for an abortion. The second, which passed by an even narrower margin, would undo many of the restrictions passed by states in the wake of Dobbs.Republicans have made their own legislative play, with a a large contingent working to pass the the Heartbeat Protection Act, which would “prohibit abortions when an unborn child’s heartbeat is detected,” effectively amounting to a nationwide abortion ban. Congress this week also turned its attention to contraception, whose federal guarantee in Griswold v. Connecticut is another product of the doctrine of substantive due process that Justice Thomas would render a dead letter. The House passed the Right to Contraception Act by a 228-to-195 margin, with eight Republicans joining the Democrats in support. In limning his vision for the days after Roe, one that now appears to be emerging into view, Justice Alito borrowed language set down by Justice Antonin Scalia in an earlier abortion case, Planned Parenthood v. Casey. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Roe’s End Spurs a Lawmaking Renaissance

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