The “Women’s Health Protection Act of 2017” is promoted as pro-abortion legislation. Rather than focusing on this controversial topic, I want to look at the constitutional train-wreck Congress is trying to impose on the states.
Typical of a lot of modern legislation, this act ignores what the Constitution says in favor of winning political brownie points. Our ignorance of the Constitution means that those we hire to represent us are, more often than not, pulling the wool over our eyes.
Constitutional Authority Statement
House Rule XII, clause 7(c) requires that, to be accepted for introduction by the House Clerk, all bills (H.R.) and joint resolutions (H.J.Res.) must provide a document stating “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.”
Since January 2011, House Rule XII required that any House legislation had to show specifically where Congress received the authority to enact such legislation. With chutzpah that staggers belief, Representative Judy Chu, who sponsored the legislation, along with her co-sponsors, claim the authority under Article I, Section 8, Clause 1:
By Ms. JUDY CHU of California:
H.R. 1322.
Congress has the power to enact this legislation pursuant to the following:
Clause 1 of Section 8 of Article 1 of the United States Constitution
Why do I say this statement requires chutzpah? Because Article I, Section 8, Clause 1 of the U.S. Constitution says:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This legislation has nothing to do with collecting taxes. In fact, the words tax, duty, impost, and excise, don’t even appear in this legislation. Some may argue that it falls under the “general Welfare” clause, but there are two issues with this argument. First, Clause 1 does not give Congress the power to legislate for the general welfare, only to collect taxes. Second, as James Madison stated in Federalist Papers #41, the general welfare clause is not a blanket authority for Congress to do whatever it thinks is in the general welfare of the United States.
It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. …
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Apparently Congress thinks we are too stupid to actually know what they are and are not authorized to do. Apparently they think we won’t bother checking the “specific power” they wish to exercise. Oh, wait, most Americans don’t know what powers Congress has, and never bother checking before supporting legislation.
Assumed Authority
Representative Chu goes on to insult our intelligence by claiming that Congress has the authority to pass such legislation by quoting parts of the Constitution.
(9) Congress has the authority to protect women’s ability to access abortion services pursuant to its powers under the Commerce Clause and its powers under section 5 of the Fourteenth Amendment to the Constitution to enforce the provisions of section 1 of the Fourteenth Amendment.
Well, let’s take a look at that.
Commerce Clause
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
U.S. Constitution, Article I, Section 8, Clause 3 – Commerce Clause
There is nothing in this legislation about commerce. Nothing at all. This legislation is all about telling states what laws they can and cannot pass regarding abortion.
Amendment 14, Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
This is redundant language added to many later amendments. It’s redundant because Article I, Section 8, Clause 18 already grants Congress the power to enact legislation to exercise its powers.
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Amendment 14, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Here we finally get to something related to the legislation at hand. States are prohibited from making or enforcing laws that abridge the privileges or immunities of citizens of the United States. They are also prohibited from denying any person life, liberty, or property, without due process of law. While the supreme Court has held that a woman has the right to obtain an abortion, this is based on precedent from the Roe v. Wade case, which was a case about privacy around the abortion decision and concluded, “that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.”
What I find interesting in placing the authority on the 14th Amendment is the requirement that no person may be deprived of life, liberty, or property without due process of law. Yet this legislation ignores the taking of a human life inside the womb. I thought Congress was empowered to enact legislation to protect the life, liberty, and property of all persons, not just those of a “class” they prefer.
This legislation effectively places a burden of proof on the state to show why medical facilities and practitioners need to be regulated that is not placed on any other medical facility. When I go to an outpatient medical center, does that center not need to maintain standards set by the state? But according to this legislation, the Attorney General of the United States can sue a state if anyone claims that said regulation was targeted at facilitates that provide abortions. Would you want your wife or daughter to go to a clinic that didn’t meet those standards?
And just to put the constitutional icing on this cake, nothing in the Constitution gives the federal government, including the supreme Court, the authority to determine regulations for medical care. If a state legislature, in their role as representatives of the citizens of their state, wish to exercise the power which was recognized by the supreme Court in the Roe v. Wade case, why should Congress stick their noses where they have no authority?
Conclusion
Apparently those in Congress think the American people are too stupid to know what powers the Constitution has actually granted to them. Or maybe they just think we’re too lazy to bother looking up their constitutional authority statement, so we won’t see just how ridiculous this is. Or maybe we’ve trained them to not worry about keeping to the supreme law of the land because we won’t hold them accountable. Regardless of your position on abortion, our position on the Constitution and the role of Congress should be firm. Stick to your oath to support the Constitution or we’ll find someone who will.
