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Texas Abortion Laws, SCOTUS and Federalism

When socially popular – or unpopular – policies are expected to pass Constitutional muster, emotions, rather than originalism, take center stage. The most principled Patriots abandon pretexts of respect for the Constitution when it comes to matters of immigration, the drug war, and gun laws. Democrats have abandoned all claims of constitutional limitations and relevance, so I'll focus on what the “right” is doing that will ultimately lead to less freedom. We made this argument on a recent episode of The Wasatch Report.

Since the United States Supreme Court ruled on abortion, the GOP has acquiesced to the false claim that the right to terminate a pregnancy is the law of the land. While they may not like abortion, they recognize fighting to save the lives of the unborn comes with too high a political cost, as one high-ranking member of Utah's State government responded to someone asking why they don't take up the fight here in Utah: “I want to pursue my sincerely-held policy opinions in a way that seems likely to make progress toward successful outcomes."

For all the pro-life rhetoric expressed during the Trump campaign, Planned Parenthood continued to be funded throughout his administration. When the time came to appoint Supreme Court Justices, the American Left was apoplectic over the possibility of the landmark pro-choice case Roe v. Wade being overturned by right-wing jurists.

Earlier this year, the State of Texas signed into law SB8, the sponsors of which admitted that the goal is not to further women's health, but to end legal abortion in Texas. The law, in its most relevant part, effectively bans the procedure once a fetal heart beat is detected, typically at week 6 of gestation. As predicted, the pro-abortion contingency filed for injunctive relief, and on September 1, the United States Supreme Court “allowed” the law to stand.

One would hope that law school professors could guide us through this quagmire of conflicts between state laws and federal judiciary review, but as I mentioned here, lawyers, and law professors in particular are the least helpful in this regard. Take, for example, the following statement from Jessie Hill, who “teaches” law at Case Western Reserve University in a statement to CBS News: “Anti-abortion legislatures are just watching what happens in Texas, and if Texas gets away with this, absolutely they're going to start passing them all over the country.” (Emphasis added.) South Dakota Governor Kristi Noem announced she intends to see a similar law passed in her State.

So Who Has the Final Say?

The Constitution instituted a union of sovereign republics and created a “general” government to which specific enumerated powers were delegated. Article I states that all legislative powers shall be vested in Congress. Further, the powers delegated by the States to the general government are limited and enumerated in Article I section 8. Nowhere can you find anything to do with health, women's health or reproductive health in this list of enumerated powers.

The Tenth Amendment states the following:

“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.”

Accordingly, the power to regulate the issue of abortion falls squarely within the providence of the individual States. Because the federal government has no power to regulate abortion, it follows that neither does the federal judiciary have the authority to opine on the matter when States enact laws regulating the procedure.


James Madison had argued throughout the Philadelphia Convention for a federal legislative “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of states insisted a Bill of Rights as a condition of ratification, he argued against it saying, as did Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the States, where he argued liberty would most likely be threatened. As it was when he proposed this idea during the drafting of the Constitution in Philadelphia, his proposal was rejected.

The historical context of the Bill of Rights is clear: they do not confer rights upon individuals; they are restrictive in nature, and the restrictions fall upon the general government. The first eight amendments merely reiterate that there were areas considered “hands off” to the general government. Regulation of firearms, for example, was one of the policy areas over which the States retained authority. Applying the Bill of Rights to the States was properly understood as undermining State sovereignty.

Later, when he advocated for the ratification of the Constitution, he explained in Federalist #45:

“The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state.”

In Federalist #39 he acknowledged the new system of government was to be federal, as opposed to national in nature. This means that the new government would have limited powers and adequate resources to carry out its responsibilities pursuant to those powers only.

Enter the Fourteenth Amendment

The Fourteenth Amendment served two distinct purposes: it negated Dred Scott v. Stanford, 60 U. S. 393 (1857) and it constitutionalized the Civil Rights Act of 1866, conferring the basic rights of U. S. citizenship to newly freed slaves — nothing more. However, a new concept – Substantive Due Process became the means by which to ensnare a plethora of congressional acts that would serve to usurp State sovereignty. Rights were said to “spring forth” from the amendment - “women's reproductive health” being one of them.

The Bill of Rights was never understood to be applicable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”

The Incorporation Doctrine

It was not until 1925, in the case of Gitlow vs New York, that the Supreme Court magically “found” the authority to apply the Bill of Rights against the states supposedly hidden away in the 14th Amendment. This creation of law by the Court is problematic, as well as unhistorical. The 39th Congress, which proposed this amendment, never even discussed such an “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the “progressive” era was in full swing and the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the States and the American people, thus diminishing the “separation of powers” between the States and the “general” government. This made-up doctrine has been the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.

Pro-abortion Response to SCOTUS

The Court's decision to let the law stand is in conformance with the Constitution. Nancy Pelosi's response was predictable: "This provision is a cynical, backdoor attempt by partisan lawmakers to evade the Constitution and the law to destroy not only a woman's right to healthcare but potentially any right or protection that partisan lawmakers target." She further claimed, “This ban necessitates codifying Roe vs. Wade." Further, "Upon our return, the House will bring up congresswoman Judy Chu's Women's Health Protection Act to enshrine into law reproductive health care for all women across America.

Justice Sotomayor called the court's decision "stunning," calling the Texas law a "breathtaking act of defiance—of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She continued, "Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand."

Again, a look into the history of the Constitution clearly shows that the general government has zero authority to enact this measure. So if the historical records are so clear, how does this usurpation of our federal – not national – system of government continue?

The Malfeasance of the legal Education Industry

Aspiring lawyers do not study this history of the Constitution. Instead, they study case law, which consists of the opinions of primarily left-leaning federal justices. The selected cases become the justification for broad swaths of federal overreach into areas of our lives never imagined by the framers and ratifiers. We are taught that from the Fourteenth Amendment, rights never before considered, spring forth from the Constitution, rights which must be enforceable against the States, in direct contravention to the Tenth Amendment. How do future lawyers reconcile these contradictions? They are taught to defer to the Fourteenth Amendment and ignore State sovereignty and limited government altogether.

High scores on exams are awarded for deferring to the rulings of the Federal Judiciary. In order to become a lawyer, you must show that your comprehension of the system of government we have today is a complete inversion to that which the ratifying States consented. Practicing attorneys must draft legal briefs that are also in direct conflict to historical records; we must claim our clients’ “Constitutional rights” in violation of the Pick-Your-Amendment have been violated, made applicable to the States via the Fourteenth Amendment, as if State constitutions simply do not exist.

Consistency Matters

When I first read of the Court's decision, I admonished conservatives of the importance of being consistent; if they cheer on this decision, which is proper, they must also acknowledge that the federal judiciary also lacks the authority to overturn State gun laws they don't like, such as those in California or New York. Conservatives chastise Liberals for considering the Constitution a “living, breathing” document, yet when they claim the federal judiciary has the authority to rule on state fireams laws, or demand “build that wall!” they themselves are guilty of the same behavior.

A federal veto beyond the enumerated powers results in federal dominion over the States. The people of the States will not not have a right to self-government. The issue of abortion is one of the most divisive issues facing Americans. There is no “national” solution that can “unite” us. Respecting federalism, even if you disagree with the policy, will result in there always being options. If you don't like the gun laws of one State, you have options. Want an abortion? You have options. Eventually, conservatives claiming they want more freedom will find themselves having only the liberties politically connected lawyers in black robes will allow them. And with the outraged Democrats renewing calls for a packed court, they will have no one but themselves to blame.

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