Harris's Position on Abortion Hoodwinks Women Voters

 

October 14, 2024

US abortion issues, rights and regulations fall under state jurisdiction -NOT the Federal Government- in alignment with the constitutional framework, under the US Constitution and backed by the Tenth Amendment.

Kamala Harris’s position on abortion for federal national protection of abortion rights is contrary to the legal and constitutional reality of the US Constitution under the Tenth Amendment and Court decisions. It thus poses significant challenges to the viability of her political proposals for abortion on demand under federal law.

Harris’s Supports The Women’s Health Protection Act Position on Abortion:

The Women’s Health Protection Act faces a significant constitutional challenge. Given the Dobbs decision, which emphasized state control over abortion, the likelihood that this act could successfully pre-empt state laws is low. The Supreme Court’s current judicial philosophy leans strongly toward upholding states' rights in matters like abortion, and any attempt to reinstate a federal standard would likely be struck down as unconstitutional under the Tenth Amendment.

1. Post-Dobbs Landscape: Dobbs v. Jackson effectively returned abortion regulation to the states by overturning Roe v. Wade, which means the Constitution does not recognize a federal right to abortion. The Women’s Health Protection Act seeks to re-establish a federal right to abortion by pre-empting state laws, but this would face strong constitutional challenges given the Supreme Court’s emphasis on state authority.
2. State vs. Federal Power: The Tenth Amendment reserves powers like health regulation to the states unless the federal government can justify intervention through clauses such as the Commerce Clause. However, the Court has signalled that abortion is a matter best left to states, further weakening Harris and the federal government’s justification for pre-emption in this domain. The Supremacy Clause allows federal law to supersede state law, but only when the federal government has clear constitutional authority. The current Supreme Court would likely view this act as an overreach, given their decision in Dobbs to prioritize states' rights in regulating abortion.
3. Higher Likelihood of Legal Challenges: If the Women’s Health Protection Act were enacted, it would almost certainly face challenges from states, especially those that have already passed abortion laws post-Dobbs. These states would argue that the act infringes on their Tenth Amendment rights, and the Supreme Court’s current composition could be inclined to rule in their favour.

With states having the constitutional right to regulate abortion and health issues, rather than the federal government, Kamal Harris is in my view attempting to hoodwink the voters about the abortion issue.

Harris’s potion is for the federal government to attempt to ignore the Constitution and its Tenth Amendment that gives the States, NOT the Federal government, or Harris the right to regulate abortion rights or restrictions at the State level of government.

• National Abortion Protection: Kamala Harris strongly supports federal protection for abortion rights. She favours Federal legislation that would codify the right to abortion at the national level, superseding state constitutional restrictions on late-term abortion and other measures.
• Opposition to State-Level Restrictions: During her time in the Senate, Harris cosponsored legislation like the Women’s Health Protection Act (S. 4132), aimed at preventing states from imposing common restrictions, such as requiring doctors to have hospital admitting privileges or performing unnecessary tests before providing abortions. This would align with her broader stance of limiting state authority in regulating abortion.
• Pre-Clearance Proposal: As a 2019 presidential candidate, Harris proposed that states with a history of restricting abortion rights be subject to federal pre-clearance for new abortion laws a position contrary to the Tenth Amendment of the US Constitution. This would have required those states to get federal approval before enacting new abortion restrictions. However, this proposal is non-viable after the Dobbs decision, which returned abortion regulation to the states and eliminated the rights ultra vires (beyond the powers) of federal law under Dobbs.

Harris Post-Dobbs Context and Challenges:

• Impact of Dobbs: The Supreme Court’s ruling in Dobbs significantly altered the landscape for Harris’s abortion rights agenda. By overturning Roe v. Wade, the Court returned the authority to regulate abortion to the states. This ruling directly contradicts Harris’s advocacy for a national standard for abortion rights.
• Legal Pre-emption: Harris’s position in favour of federal legislation to protect abortion rights mirrors the Women’s Health Protection Act, which would seek to pre-empt state laws. However such federal efforts would face constitutional challenges under the Tenth Amendment and the Dobbs precedent, which emphasizes states’ rights over federal authority in regulating abortion.

The Women’s Health Protection Act of 2022 (S. 4132) seeks to pre-empt state laws that place additional restrictions on abortion, but its ability to do so raises important constitutional questions.

 Federal vs. State Powers: In the U.S., the balance of power between federal and state governments is determined by the Constitution. Under the Tenth Amendment, powers not delegated to the federal government are reserved for the states. Health regulation, including abortion laws, has traditionally fallen under state jurisdiction as part of their police powers to protect public health and safety.

 Congressional Authority: Congress often uses the Commerce Clause (Article I, Section 8 of the Constitution) to regulate matters that have a substantial effect on interstate commerce, including health services. This was the basis for Roe v. Wade, where the Supreme Court recognized a federal constitutional right to abortion. However, after the Dobbs v. Jackson Women's Health Organization (2022) decision, the Court overturned Roe, returning the authority to regulate abortion largely to the states.

 Supremacy Clause: The bill asserts that federal law, under the Supremacy Clause (Article VI of the Constitution), supersedes conflicting state laws. If passed, it would attempt to establish a federal right to abortion services, overriding state restrictions that conflict with this protection (BILLS-117s4132pcs). However, this would face significant challenges.

 Religious Freedom Restoration Act (RFRA): The bill explicitly states that it overrides even federal laws like the Religious Freedom Restoration Act, which has been used to challenge certain health mandates on religious grounds. This further highlights its expansive reach but may attract legal challenges over its constitutionality.

Abortion on demand, including up until birth:

1. Statutory Right to Abortion: The act affirms the right of healthcare providers to offer abortion services and patients to receive them without being subjected to certain limitations. This includes No restrictions before fetal viability. After fetal viability, abortion is permitted when, in the good-faith medical judgment of the healthcare provider, the pregnancy threatens the patient's life or health (BILLS-117s4132pcs).
2. No Restrictions on Reasons for Abortion: The bill prohibits requiring a patient to disclose the reason for seeking an abortion, or basing access to abortion on the reasons for the decision (BILLS-117s4132pcs).
3. Good-Faith Medical Judgment: Even after viability, if the healthcare provider deems continuing the pregnancy as a threat to the patient's life or health, abortion can be provided without limitations (BILLS-117s4132pcs).
4. Pre-emption of State Laws: This federal act supersedes state laws that impose additional restrictions on abortion, thus ensuring that access to abortion services is protected nationwide without being impeded by state regulations (BILLS-117s4132pcs).

Analysis and Thoughts:

• Ethical Complexity: The act prioritizes the autonomy of the pregnant individual and the medical judgment of healthcare providers, meaning that decisions about abortion, even late into pregnancy, are determined primarily by the individual's choice and medical circumstances. While it ensures access, it raises ethical questions about late-term abortions, especially for reasons other than the health of the mother or fetus.
• Late-Term Abortions: Abortion until the point of birth could theoretically be allowed in extreme cases where the pregnancy endangers the mother's life or health, as defined by the healthcare provider. This makes it vital for the "good-faith medical judgment" clause to be scrutinized to ensure that the health risks warrant such decisions.
• Voters Should Debate: The allowance for abortion up to and including birth on moral and medical grounds.

Source:

https://www.congress.gov/bill/117th-congress/senate-bill/4132/text