This article was originally published at Public Discourse, a journal of the Witherspoon Institute, here.
If the Supreme Court finally overrules Roe v. Wade this summer, Congress will no longer be able to blame the Supreme Court for its inability to act to protect human life in the womb. There will be more pressure than ever on pro-life legislators to take courageous action to support expectant mothers and to protect human life in the womb. What should that post-Roe legislative agenda look like?
In addition to legislation that tangibly supports families and expectant mothers, legislators should introduce strong anti-abortion legislation that recognizes the personhood of the unborn, strips federal courts of jurisdiction over the statute, and empowers individuals to enforce it through a private right of action. And if such strong medicine is too politically impracticable, pro-life legislators should at the very least tax abortion providers and abortion-pill manufacturers as a mechanism for promoting a pro-life social policy.
Recognize Preborn Personhood
Most importantly, Congress must recognize that unborn children are legal and constitutional persons within the meaning of the Fifth and Fourteenth Amendments. This is not a new idea: Every Republican Party platform going back to 1984 has called for “legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.”
As I and others have explained, preborn children are “persons” within the original public meaning of Section 1 of the Fourteenth Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law” or deny any person “the equal protection of the laws.” State laws that permit elective abortion and discriminatorily withhold application of generally applicable homicide laws violate this constitutional principle.
Recognizing personhood is an exercise of Congress’s responsibility under Section 5 of the Fourteenth Amendment, which confers on Congress “the power to enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. Although the Supreme Court and the executive branch both have important roles to play in ensuring that constitutional rights are secured for preborn children, Section 5 vests primary enforcement authority in Congress.
Thus, Congress should enforce the constitutional guarantees of due process of law and equal protection of the laws for unborn children nationwide, barring states from giving effect to permissive abortion laws. Such legislation could provide, for example, that no state or person acting under state law (or in interstate commerce, as an alternative basis) may discriminate on the basis of whether a human being has been born. The law should specifically apply to any state prohibition against homicide, and require that any person who commits an abortion shall be subject to the same or comparable penalties as exist under state law for other homicide cases.
Strip Jurisdiction from Federal Courts
Advocates of abortion would no doubt sue to stop a statute like this from going into effect, and with enough shots-on-goal could probably find a judge to enter a nationwide injunction. The solution to this overreach is to eliminate federal courts’ power to entertain these abusive suits. Lower federal courts are created by statute, and their jurisdictions can be limited by statute. As Justice Clarence Thomas explained for a plurality of the Supreme Court in a 2018 case, “when Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
The Supreme Court is created by the Constitution, not statute, but Article III, Section 2 empowers Congress to make “such exceptions” to its federal appellate jurisdiction as Congress deems fit. Again, Justice Thomas: “Congress generally does not violate Article III when it strips federal jurisdiction over a class of cases”; to the contrary, “[t]he constitutionality of jurisdiction-stripping statutes . . . is well established.”
Congress may, and should, strip jurisdiction from all federal courts to hear any cause or claim—including constitutional claims—challenging the validity of Congress’s personhood recognition and prohibition against permissive state abortion laws. By withdrawing from federal jurisdiction cases that challenge the validity of its personhood recognition, Congress can defend its determination against the meddling of unelected federal judges.
Create a Private Right of Action
Sadly, because pro-lifers cannot rely on prosecutors or the administrative state to enforce their legislative preferences, it is good policy to deputize the public to help ensure compliance with Congress’s pro-life legislation. To forestall non-enforcement, Congress should confer on private individuals a cause of action to sue any person—including any federal, state, or local official—acting under state law or in interstate commerce to deprive an unborn child’s rights secured by the Fifth and Fourteenth Amendments (and statutes enforcing those amendments).
Texas led the way in empowering citizens to use private rights of action to enforce anti-abortion policy in its SB 8 legislation (which prohibits abortion after the detection of an unborn child’s heartbeat), but private rights of action are common and effective in many other policy areas too. Many states, such as California, allow any individual to sue to enforce laws focused on unfair competition, false advertising, privacy, civil rights, and many other areas. Federal law authorizes private suits to enforce environmental protection laws, credit reporting laws, and anti-trafficking laws, to name a few. There is nothing novel or unprecedented about using this enforcement mechanism, and nothing less could ensure the law is vigorously enforced.
Use the Taxing Power to Cripple the Abortion Industry
A bill with these three features would have an important messaging and educational purpose. But of course such a bill would be unlikely to achieve the sixty-vote Senate threshold to avoid the filibuster and achieve cloture, even after the 2022 midterm election (much less survive a presidential veto). So in the meantime, another tack is warranted: pro-life legislators should levy a tax on abortion providers. This provision could be enacted into law with fifty-one Senate votes through the reconciliation process, and could be added to must-pass legislation.
Chief Justice John Marshall was right when he said that “the power to tax is the power to destroy.” Although current Supreme Court doctrine does not allow Congress to use its taxation power to punish private conduct, it comes very close. Chief Justice Roberts notoriously upheld the Affordable Care Act on this basis, writing that the Supreme Court will “decline to closely examine the regulatory motive or effect of revenue-raising measures,” so long as the tax does not “become so punitive that the taxing power does not authorize it.”
Just as Congress’s taxing power has been used to all-but prohibit automatic firearms and to effectively require individuals to purchase health insurance, a special “sin tax” on abortion providers and abortion-pill manufacturers (perhaps $2,500 for each abortion performed or pill prescribed) could—consistent with Supreme Court precedent—regulate individual behavior and cripple the abortion industry.
Inaction Is Unacceptable
Once the Supreme Court decides Dobbs, Congressmen and women who ran on pro-life platforms will have a clear path to act on their campaign promises to protect human life in the womb. After decades of tragedy and intense efforts, grassroots pro-life voters expect their elected representatives to do everything in their constitutional power to protect life. Pro-life legislators should seize the opportunity to enact a post-Roe legislative agenda that both empowers parents to raise their children and effectively prohibits abortion. Both goals are well within Congress’s constitutional power.