Abortion access, as an issue in the presidential election, is a scam

There is no path toward passing a nationwide ban or open access

Vice President Kamala Harris has made abortion access a central theme of her campaign for president. She says if Congress passes a law to make abortion legal in all 50 states, she will sign it. And so, some voters are supporting her campaign with that promise specifically in mind.

But this promise is nothing more than a scam, the emptiest of empty promises. And I really hate it when politicians scam voters by making a promise they know to be impossible or highly unlikely (and the media lets them).

Photo by Brad Weaver on Unsplash

When the U.S. Supreme Court overturned Roe v. Wade with the Dobbs decision two years ago, the court’s central premise was that Roe erred in saying that hidden within the actual language of the federal Constitution is a protection of a woman’s right to an abortion. In Dobbs, the court says:

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

The decision also catalogues state abortion laws since 1825, arguing that in the nation’s formative years, states passed different regulations and restrictions in the area of abortion. The ruling concludes, “the authority to regulate abortion must be returned to the people and their elected representatives.”

Since the U.S. Constitution makes no mention of abortion, and the court says a right to abortion can’t be inferred, the provision of the Tenth Amendment kicks in. This amendment says:

“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.”

Whether states ban or allow abortions is solely up to the states, per the Tenth Amendment, and accordingly, different states have taken vastly different actions on the matter since Dobbs.

It is highly unlikely that Congress, in its current configuration, would send a president a bill either authorizing or banning abortions nationwide. In the off chance that were to happen, and a president were to sign a law nationalizing the issue, states would sue.

A ban on abortions nationwide would be fought by states that allow it, and a nationwide protection of abortion would be fought by states that disallow it. The argument would build on Dobbs and the fact that, without the federal Constitution mentioning abortion, the issue is squarely the purview of the states.

And while Dobbs makes no mention whatsoever of the Tenth Amendment, one would imagine that the U.S. Supreme Court, as it is presently constructed, would void any congressional action on the issue of abortion, either allowing or banning it.

This is not to say that other abortion-connect issues won’t come up in the next Congress or presidential term. For example, the federal funding of abortion or the use of U.S. mail systems to connect women to abortion drugs are issues likely to surface.

But when Harris claims that the power of the presidency will make abortion legal in the 50 states, or that President Trump would put in place a nationwide ban, that is an outrageous lie.