Tuesday, July 17, 2018

How Bad Will Things Become? Part One: The Post-Kennedy Assault on Reproductive Rights

by Neil H. Buchanan

The last 24 hours have been truly astonishing.  A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate).  But then the Trump-Putin press conference happened, and I am truly at a loss.

Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today.  But before I do, I can only say ... Holy freakin' hell!!  What is going on?  Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it, made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous."

To be clear, the offenses in the Constitution that justify the president's impeachment, conviction, and removal from office are "treason, bribery, or other high crimes and misdemeanors."  That is an or, not an and, so it is not even necessary to wonder what constitutes high crimes and misdemeanors on this point.  Treason is an independently impeachable offense.  We will, of course, now argue about what constitutes treason, but given how promiscuously Republicans have thrown that word around in the past ten years or so, that could be a fun argument.  Except for two things.

First, this is not fun.  At various points during the Republican primaries, late-night comedians all had their "Oh crap, this isn't funny anymore" moments.  We are well past fun or funny.  Going into 2017, I had been deeply fearful of how bad things would become under Trump, but despite the chaos of his first year, I joined others in appreciating the saving grace of Trump's utter incompetence, which allowed things to feel scary while somehow also feeling safe.

This was something like a roller coaster ride that we could reasonably believe had recently been maintained and inspected.  The Trump Ride has been jarring but (except for the many direct victims of Trump's cruelty and vindictiveness) still felt plausibly non-life-threatening.  Now, we know not only that nothing is being maintained or inspected, but we can clearly see that it is being actively sabotaged.  Even the privilege that non-poor white people unthinkingly rely upon will not be enough to save us from the possible consequences.  And if the mid-terms are also stolen, we will be in a completely different universe.

Second, we are not even going to have an argument about treason.  After the post-Charlottesville "very fine people" Trump meltdown, there were a few days during which we actually had reason to wonder whether Republicans had reached their limit.  They had not, and nothing since then has even brought them to say more than, "This is bad, but ... ."  The same day as the Helsinki insanity, the usual small group of Republicans said variously disapproving things, but none -- including Senators who chair committees with oversight responsibilities and who have the ability to push back on appointments and other matters -- has even hinted at consequences for Trump.  We keep asking, "How can Trump say that?" and the answer is always, "Because he knows he'll get away with it."

And of course the major reason that Republicans will say nothing is that they do not want to rock the boat as they lock in their era of minority rule.  Why worry about a big dollop of treason when you can get yet another extreme right-wing justice on the Supreme Court?  I cannot help but also point out that Neil Gorsuch and Brett Kavanaugh are far to the right of what I had thought most Republicans -- even very conservative Republicans -- viewed as acceptably conservative, but that merely means that they were better at hiding their genuine extremism than I had thought they were.

Because the first part of this column was hijacked by Trump's prostration before Putin and Republicans' prostration before Trump, I will limit myself here to only one issue in addressing the question "How Bad Will Things Become?" on the constitutional front.  Again, when a President is selling out the country in order to salve his own bruised ego regarding the illegitimacy of his election, constitutional law might seem like a rather abstract concern.  I could articulate the argument that constitutional law is anything but abstract, but I will set that aside here because the argument does seem rather obvious.

So here is the substantive issue: What will a full-on hyper-conservative Supreme Court do in the area of reproductive rights?  CNN commentator Jeffrey Toobin spent a bunch of time after Justice Kennedy's retirement announcement saying that "Roe is gone, forget about it!" and he was right.  Most commentary that I have read, however, limits itself to saying that the end of Roe would return the question to the states.  Yes, states in the Deep South and a few others will end all access to abortion, this line of reasoning goes, but blue states will still allow it.

But why?  The Republicans have been hiding behind procedural arguments for years, especially states' rights and separation of powers, to pretend that they do not have an aggressive substantive agenda, but that is obviously a pose.  As Professor Dorf pointed out on this blog almost a full decade ago (December 2008), for example, the conservative backlash in the 1970's against gay rights was a reaction against the enlightened decisions of local representative governments.  All of the posturing since then about federalism and "let the people decide, not the courts" was utter bull.

Similarly, some conservatives' attacks on the Affordable Care Act tried to frame it as federal overreach, partly as a way to allow 2012 Republican presidential nominee Mitt Romney to pretend that his law in Massachusetts had not violated some of the very principles that conservatives were invoking against President Obama's law.  (To be clear, the ACA was actually much better than Romney's law, precisely in the ways in which it was not conservative, but that is a story for another day.)

Now, the Republicans have no further reason to hide behind procedural objections.  They oppose reproductive freedom for women, full stop.  The idea that they will restrain themselves to merely "letting the states decide" is beyond naive.

Back when the first big case challenging the ACA reached the Court, some writers pointed out that it would have gone down by an 8-1 vote, if the justices had all voted consistently with their stated views in earlier cases.  But of course four votes instead materialized for the proposition that the Commerce Clause included an action/inaction distinction, with the Chief Justice's surprise move regarding the taxing power being the only thing that saved the law from invalidation.

Why, then, would movement conservatives be satisfied with a federalist response to reproductive rights?  And to be clear, I am not only talking about abortion here, because Republicans have been more than happy to attack access to birth control and other women's health services, which is what motivated the Hobby Lobby decision.

How bad will things become?  There is nothing stopping a newly configured Supreme Court from defining life as beginning at conception.  Indeed, given over half a century of conservative attacks on the right to privacy (with pseudo-insightful comments about how the word privacy itself never appears in the Constitution), why would the new Court not simply overrule Griswold, too?  After all, even Congress might one day flip to Democrats (unless the Court's anti-voter jurisprudence prevents it), so why would the Court's conservatives allow mere elected representatives to provide the people with reproductive freedom?

Will there be resistance?  Of course there will.  As Professor Dorf recently pointed out in a broader context, there is a little bit of substance -- but only a little bit -- to the hope that state courts will protect us from a new hyper-conservative Supreme Court.  And perhaps Chief Justice Roberts's vaunted concern about the institutional legitimacy of the Court will cause him to prevent an outright sprint backward to the Nineteenth Century, but I am not counting on it.

Some readers might be thinking, "Well, the Court's conservatives might want to do X, but how would they do it?"  After all, many Dorf on Law readers are lawyers and law professors, and we are trained to think through the legal reasoning by which a Court would overrule precedent and accelerate a reactionary revolution in jurisprudence.

But that gets it exactly backward.  I am not quite as much of a Legal Realist as, say, frequent Dorf on Law contributor Eric Segall, but Segall has certainly been right about the current Court's unprincipled jurisprudence, including his observation from this past January that if the Court's conservatives "were to take their prior rules regarding precedent (and federalism interests) seriously, they would not" rule against the unions in the Janus case, even though he (and everyone else) knew that the five conservatives would do exactly that.

A completely unconstrained Court can decide to overrule some cases, pretend not to overrule others, and grossly mischaracterize still others; but it can get to where it wants to go.  Given how closely the Court's conservatives appear to coordinate with their political colleagues in the movement, they might actually decide not to formally overrule Roe as a way to keep their base angry (in a move similar to how they have eviscerated the estate and gift tax -- $22.4 million exemptions per couple! -- without actually repealing it, thus preserving a potent fundraising issue).

But anyone who thinks that abortion is the only reproductive right that is in danger, or that there will still be states in which those rights are still available, misunderstands just how brazen and arrogant the Court's conservative wing has become.

Things will become very bad, indeed.  And that is even assuming that Trump does not simply hand power directly over to Putin in the meantime.


Joe said...

One interesting discussion:


egarber said...

Suppose Roe is overturned, and there is an electoral backlash that results in Congress (including 60 senators) and the White House returning to Democrats. Congress and the President then codify Roe via commerce clause power.

Three game-theory observations:

1. Though that might generate some solace, it wouldn't be fundamental law, which means Republicans could repeal it when the electoral pendulum swings back.

2. Perhaps the SCOTUS does what you allude to, ruling that constitutionally protected life begins at conception. That would arguably be the most "activist" ruling in history, but it could happen nonetheless, given the zealotry out there. At that point, to restore reproductive rights, a future court would have to overturn the ruling, or the country would need to amend the Constitution.

3. Perhaps the SCOTUS uses the law as an opportunity to trim back the commerce clause itself, throwing it out in some way.

hmmmm. I guess I don't have any real point or tidy conclusion. Just following some paths I guess. :)

Joe said...

I wonder how Congress will protect abortion via the Commerce Clause.

Shag from Brookline said...

By proscribing states seeking to prevent residents from leaving an anti-abortion state to travel to a state that permits abortion for purposes of an abortion? Or would women have such a constitutional right regardless of congressional action? Anti-abortionists might urge congressional action to impose Commerce Clause regulatory limitations on such interstate travel by women for purposes of an aborrtion, sort of a Mann Act variation.

egarber said...

Why can't Congress simply say people have a right to obtain abortion services through the instruments of interstate commerce - the same way they have a right to not be discriminated against because of race, etc.? And that trumps (get it?) state efforts to ban the practice via the supremacy clause? What am I missing?

egarber said...

Or if Congress wanted to, it could ensure that say, medical marijuana is an option for pain treatment, regardless of state efforts to ban it, no? With pot, the debate has been about making federal law silent on the matter, but it could also enshrine the right to access.

Joe said...

In theory, the Commerce Clause might be so interpreted, but the racial discrimination thing is much more clearly a regulation of commercial activity, stopping something that interferes with the smooth process of doing business. It also has a Fourteenth Amendment angle though it was not used because a 19th Century case (Civil Rights Cases) blocked congressional power to require service in public accommodations.

Actively giving people the right to sell certain goods and services over and above state law especially in an area traditionally seen as state controlled (medicine) is more of a reach as to regulation of interstate commerce. The federal government could allow abortion in federal areas but that might not be under the Commerce Clause (maybe different as applied to the Indian Commerce Clause).

Shag's suggestion as to protecting interstate travel is something they can do and that can reach to mail order of abortion pills and tele-medicine [use of Skype etc. to see a doctor] to some extent perhaps.

egarber said...

Suppose a state banned vegan products in commerce. Are you saying Congress couldn't over-ride that with commerce regulation allowing such sale?

And in Raich, the court ruled that Congress can even regulate activities that indirectly impact illegal markets of things (regardless of state law) - which would seem to therefore inherit the authority to make the thing commercially legal. Is that ruling more valid because Congress wants to prohibit something, rather than promote it? I don't see any meaningful distinction between the two: regulation can cut both ways, no? I mean, I suppose the principles of federalism make these cases different on some level, but does the commerce clause care about that?

Or take the "selling insurance across state lines" idea. Empirically and politically, it's an awful idea (imo), but Congress clearly has the power to grant individuals that commercial right, no? Even if it means the Feds would be crapping all over state market control. Why is that statutory right different than one that protects access to reproductive medicine? It's all stuff tied to defining how commerce should work.

egarber said...

<<Actively giving people the right to sell certain goods and services over and above state law especially in an area traditionally seen as state controlled (medicine) is more of a reach as to regulation of interstate commerce.

I see the question here as: does Congress have the authority to preempt states laws, when it comes to commerce - whether the preemption reduces or expands individual liberty to do something?

egarber said...

Running around between meetings. Sorry for the multiple and scattered posts.

<<In theory, the Commerce Clause might be so interpreted

I'm not a constitutional lawyer for sure, but isn't it more than theory? I think I'm just reasonably interpreting all the precedents out there.

Joe said...

If a state wants to ban the purely local sale of vegan products, it might be hard to imagine a reasonable basis for it [and there might be a liberty interest], but at some point, yes, I think a state can ban local sale of products in various respects.

The interstate sale of insurance seems a much easier call since it is an existing market and involves the interstate sale of something. Plus, insurance is basic to upholding the well being of interstate commerce in various respects. I thought the Affordable Care Cases an easy call for that matter. But, it in fact blocked a claim of federal Commerce Clause power to require an individual mandate. So, I am wary about pushing the Commerce Clause argument here.

Pre-emption arguments can be taken pretty far, but given the traditional recognition of state discretion over drugs, medicine and other things, I question how far that would be allowed to the extent you are theorizing. Gonzalez v. Oregon (Oregon's allowance of euthanasia) cited the principle that "regulation of health and safety is "primarily, and historically, a matter of local concern," and worried about a "far-reaching intent to alter the federal-state balance and the congressional role in maintaining it."

I question the ability to purely on Commerce Clause grounds to force a state to allow abortion services, given repeated understandings in the cases that the only reason states couldn't ban it under their police power was a liberty interest. At least, under the current Roberts Courts understanding of state power. I think it is a possible reading but would need to see something comparable that was allowed.

Congress can "promote" but it would be an open-ended power if that would mean not only regulating existing markets in various ways (e.g., requiring purchase of insurance or limiting home production of wheat) but overriding state power to disallow abortion procedures or local sale of cigarettes or marijuana. This putting aside some other individual right to those things.

egarber said...

Thanks for the reply.

Under the commerce clause, could Congress pass a law guaranteeing the right to a certain level of prenatal care? If so, what’s the difference between that and the right to end a pregnancy, in the context of available authority?

egarber said...

I should add:

Medical delivery is an established market, so my example seems to meet your implied test there.

Joe said...
This comment has been removed by the author.
Joe said...

I forgot about the Freedom of Choice Act, which was proposed in the past, and is in part based on the Commerce Power. It very well might be right up egarber's alley.

I simply am wary about it at this stage of legal development. But, I'm open to be proven wrong, if Congress passes such a law. My arguments have a certain theoretical quality since I don't know of cases where something like this was tried and it was clearly said to be wrong ... at least in recent years.

Under the commerce clause, could Congress pass a law guaranteeing the right to a certain level of prenatal care?

Well, there is a type of right now to a certain level of medical care to those otherwise unable to pay for it, particularly for children, but the spending power is used. Medicaid and Medicare would come to mind there. Not sure if anything is covered there states would be blocked from banning even if otherwise it had the power to do so. The spending power might be a way to put in place a national abortion law since abortion is put one procedure in a comprehensive national health system that involves federal funding in a range of areas.

I think I can see a Commerce Clause argument even behind the creation of an interstate market. The national market has employees and customers who have prenatal needs. I do wonder how far you can take that. Seems like you could have a federal override of a large range of state laws potentially. Could prostitution be legalized? There is a good argument that it would promote health with interstate effects

Joe said...

(The spending argument would leave a state the option to deny funding but realistically that would be extremely difficult given the range of spending involved. OTOH, the Affordable Care Act Cases put a limit there on a Medicaid expansion requirement, so maybe the Roberts Court would find something wrong with it. My comments have a certain predictive element per the courts in place.)

Anyway, it's an intriguing idea and I'm sure Michael Dorf et. al. probably can put forth an argument that could make it work.

Shag from Brookline said...

If SCOTUS were to decide that the Constitution does not provide a right to an abortion, under the Supremacy Clause that would be the law of the land. SCOTUS might reason that life begins at conception, but that may be dicta to the basic decision. Some might construe such as establishing that such life is a "person" within the meaning of the Constitution and thus entitled to certain protections. What, if anything, could Congress do to in effect override such a SCOTUS decision? Or, what could Congress do to negate how some states might permit abortions? As for the Commerce Clause, as I stated earlier, perhaps a variation of the Mann Act?

Shag from Brookline said...

Following my 9:02 AM comment, I checked out the Take Care Blog and learned of Mike's Part 2 on abortion with Kavanaugh's replacing Kennedy. Much to digest.

Joe said...

As to Thomas, he had a chance to promote a federalist approach in the "partial birth" abortion case & in the DOMA case, both involving federal laws that certain "federalists" argued were unconstitutional. National Review, e.g., had at least one op-ed against the legitimacy of a national ban on an abortion procedure based on what it deemed an overreach of the Commerce Clause.

He could argue that the argument was not directly raised though the 10th Amendment was used in at least one DOMA case, U.S. v. Windsor had a section with federalist themes and he more than once reached out to make a constitutional argument not directly raised. He, e.g., cited the 2A in his separate opinion in Printz. The Supreme Court also could have asked the litigants to cover the issue, like it did regarding the Establishment Clause in the travel ban case.

So, unless Justice Mike Lee happens, maybe, I'm not holding my breath there. Anyway, a comprehensive national ban does not seem the most likely approach, knock on wood.

Joe said...

[my comments references the Take Care piece Shag referenced]