Proposed Federal Abortion Legislation

Proposed Federal Abortion Legislation
T h e proposed legislation w ould enact a federal statutory regim e o f abortion regulation that
leaves the S tates w ith substantially less regulatory authority than they have under R o e v.
Wade or P lanned Parenthood v. Casey.
T he proposed legislation w ould represent a doubtful exercise o f C o n g ress' pow er to enforce the
F ourteenth A m endm ent and would rest on a questionable link to C ongress' po w er to regulate
interstate com m erce.
July 1, 1992
Le t t e r fo r th e C h a ir m a n
Co m m it t e e o n La b o r and H u m a n Re s o u r c e s
U.S. S e n a t e
This letter presents the views of the Department of Justice concerning the
amended versions of the Freedom of Choice Act of 1991, introduced as
companion bills H.R. 25 and S. 25 (collectively “the bill”). The Department
strongly opposes enactment of this legislation. The recent amendment intro­
duced by Senator Mitchell, making minor changes to the bill, fails to confront
the bill’s most serious flaws. For the reasons below, if the bill were pre­
sented to the President, I and the President’s other senior advisors would
recommend that he veto this legislation.
The review bill would still prohibit States from enacting reasonable regu­
latory restrictions on abortions clearly permitted under Roe v. Wade and its
progeny. It would also represent a doubtful exercise of Congress’ power
under the Fourteenth Amendment and would rest on a questionable link to
Congress’ power to regulate interstate commerce.
I. The Revised Bill
The bill is described by its sponsors as a “codification” of much of the
complex regime of abortion legislation erected by the Supreme Court since
its 1973 decision in Roe v. Wade, 410 U.S. 113 (1973). The bill as revised
expressly states its purpose to be “to achieve the same limitations as pro­
vided, as a constitutional matter, under the strict scrutiny standard of review
enunciated in Roe v. Wade and applied in subsequent cases from 1973 to
1988.” Section 2(b). Because of its sweeping language, however, the bill
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would enact a federal statutory regime of abortion regulation that leaves the
states with substantially less regulatory authority than under Roe or the Su­
preme C ourt’s decision earlier this week in Planned Parenthood v. Casey,
505 U.S. 833 (1992).
The essence o f the bill remains substantially unchanged: “[a] State . . .
may not restrict the freedom o f a woman to choose whether or not to termi­
nate a pregnancy before fetal viability,” and after viability the State may not
restrict abortion if the abortion “is necessary to preserve the life or health of
the woman.” Section 3(a)(1) and (2).
The revised bill would thus still allow abortions for any reason, even sex
selection, before the fetus becomes “viable.” With no definition or stan­
dards for viability, it appears that the bill could leave that determination to
the person performing the abortion. Thus a single health care professional’s
judgm ent that a particular fetus was not “viable” would be conclusive and
binding on the state, whether o r not the fetus satisfied other objective crite­
ria o f “viability” such as a test for weight. It is not even clear that the
professional judgment must be rendered by a medical doctor.
Even after fetal viability, with no standards for determining what consti­
tutes the “health of the woman” justifying an abortion, the revised bill would
still go well beyond merely “codifying” Roe. As we have explained in
earlier statements and testimony, we believe that the term “health” in section
3(a)(2) would likely be construed broadly. See Doe v. Bolton, 410 U.S. 179
(1973). The Court there noted that the medical judgment must be made in
light o f all factors, including “emotional, psychological, [and] familial” fac­
tors. Id. at 192. It is likely, therefore, that even after viability an abortion
perform ed for any reason that a medical professional (who, again, appar­
ently need not be a licensed physician) deemed “relevant to the well-being”
o f the woman, id., would probably be protected under the bill as “necessary
to preserve the life or health of the woman.” Section 3(a)(2).
The revised bill purports to address a few of the concerns the Department
has raised previously. These changes, however, do not fully meet the
D epartm ent’s concerns on the issues they address, and leave many more
serious flaws unaddressed.
For example, the revised bill allows some degree of parental participation
in the decision of a minor to undergo an abortion. However, it provides 6nly
that the state could require the minor to “involve” the parent in the decision.
Section 3(b)(3). The term “involve” is left undefined. It is troubling that
the bill’s authors chose an inherently vague term over more definite words
such as “notify” and “consent.” It is simply unclear whether the bill would
exclude parental consent requirements. The bill could thus be read to invali­
date laws in the twenty-one states that require some form of parental consent,
including the Pennsylvania abortion statute upheld this week by the Su­
prem e Court in Casey.
So read, the bill would go well beyond Roe and later cases. In Bellotti v.
Baird, 443 U.S. 622, 647 (1979), for example, a plurality of the Court ruled
that a parental consent requirement for abortions by minors would be consti­
tutional if it contained a judicial bypass provision. And in Planned Parenthood
Association v. Ashcroft , 462 U.S. 476, 493-94 (1983), the Court upheld an­
other parental consent provision with a judicial bypass. The bill could be
read to overrule these cases to the extent they permitted such consent provi­
sions. The bill would not, therefore, codify Roe as “applied in subsequent
cases from 1973 to 1988,” as it claims to do. Section 2(b).
Although the revised bill would permit States to protect the rights of
unwilling individuals to refrain from performing abortions, the bill does not
permit institutions to refuse to perform abortions. Thus, a hospital whose
board or sponsoring organization was opposed to abortions could neverthe­
less be held liable for refusing to perform them. Indeed, the bill could now
be read to require institutions to hire willing individuals in order to provide
abortion services. Similarly, although the Senate bill has been amended to
allow a state to refuse to pay for abortions, section 3(b)(2), nothing in that
provision or any other part of the bill appears to permit a state to deny the
use of a state facility to a woman who was willing to pay for the abortion.
The bill might even be construed to require the states to provide state facili­
ties for abortions where private facilities are unavailable.
Further, the revised bill contains no exception for informed consent and
waiting periods. State laws requiring that factual information concerning
the nature of the abortion procedure and available alternatives be made avail­
able to a woman twenty-four or forty-eight hours prior to an abortion would
thus be invalidated. Thirty-two states currently have such laws. The pur­
pose of such provisions is typically to ensure that the woman’s decision to
abort is free, reflective and informed. That state purpose would be illegiti­
mate under the bill.
II. Congressional Authority
The bill has been significantly revised to address the Congress’ power to
adopt it. The bill asserts that Congress has the authority to enact the bill
under both the Commerce Clause (Article I, Section 8) and Section 5 of the
Fourteenth Amendment of the Constitution. See section 2(a)(4). We con­
tinue to doubt whether Congress has authority to enact this legislation on the
proffered grounds.
In commenting on earlier versions o f this legislation, we criticized the
suggested reliance on Congress’ power under Section 5 of the Fourteenth
Amendment, arguing that the Section 5 authority does not extend to fixing
the content of the amendment’s substantive provisions. We are therefore
pleased that the bill now acknowledges that “Congress may not by legisla­
tion create constitutional rights” and purports to create only “statutory rights.”
Section 2(a)(3).
Having recognized that Congress may not create constitutional rights or
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alter their content, the bill’s drafters have now sought to assert a connection
between recognized constitutional rights and the statutory right to abortion
that the bill would adopt. That assertion, however, is unpersuasive.
For example, the bill suggests that the statutory rights it creates would
protect “liberty.” Section 2(a)(4). The Fourteenth Amendment, however,
prohibits only certain deprivations of liberty, for instance those that have no
rational relationship with a legitimate state interest; were it to prohibit all
deprivations of liberty, it would forbid an enormous range of laws including
laws against homicide. Thus, to say that a proposed federal statute prevents
the states from restricting liberty in general is to say almost nothing about
whether the federal statute in any way implements the commands of the
Fourteenth Amendment. The bill also asserts that state restrictions on abor­
tion interfere with women’s exercise of constitutional rights unrelated to
abortion. Section 2(a)(2)(D). The bill does not say what these other rights
are, so it is impossible to tell how it would keep the states from interfering
with them.
As we have noted with respect to earlier versions of this legislation, Con­
gress’ power under the Commerce Clause has been held to be quite broad. It
is likely that Congress could enact some legislation concerning abortion
pursuant to that power. The arguments now put forward to support this
legislation under the Commerce Clause, however, are still troublesome. For
example, the bill finds that restrictions on abortion “burden interstate com­
merce by forcing women to travel from States in which legal barriers render
contraception or abortion unavailable or unsafe to other States or foreign
nations.” Section 2(a)(2)(A)(ii). We fail to see how any increased interstate
travel resulting from diverse state laws regulating abortion would constitute
a burden on commerce. Moreover, the argument that travel from one juris­
diction to another justifies a single national abortion law on commerce
grounds proves too much, for it could justify uniform federal laws on any
subject, which is inconsistent with the notion of the federal government as a
government of limited powers.
Finally, in our view Congress’ intervention in this area would usurp a
field o f legislation traditionally reserved to the states. As must be obvious
from the public reaction this week to the Supreme Court’s Casey decision,
the policy choices in this area are difficult and national consensus is elusive.
The political outcomes of fifty distinct state processes would be far more
likely to represent the genuine diversity of views that exists on this subject
than would a uniform federal code entrenching a more restrictive regime
than that of Roe and Casey. Observance of federalism is thus particularly
desirable with respect to abortion regulation.
In keeping with the President’s position that “[a]s a nation, we must
protect the unborn,” Message to the House of Representatives Returning
Without Approval the District of Columbia Appropriations Act, 1990, 2 Pub.
Papers of George Bush 1563 (Nov. 20, 1989), and for the reasons explained
above, the Department of Justice opposes the enactment of the bill, and if
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the bill were presented to the President in its current form, I and the President’s
other senior advisors would recommend a veto.
Sincerely,
WILLIAM P. BARR
Attorney General
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