Abortion Rights Do Not Hinge on Who Is Elected President

: Betsy Mccaughey on Oct 30, 2024

The biggest lie roiling the election is Vice President Kamala Harris' claim that former President Donald Trump will ban abortion nationwide.

Abortion rights do not hinge on who is elected president, nor on which party controls Congress. The issue is out of their hands. Wherever you live, the state legislators elected in your own state will determine your abortion rights. That is what the U.S. Supreme Court ruled in 2022, when it overturned Roe v. Wade.

As a pro-choice woman, I understand some voters are putting aside concerns about inflation, the border, foreign policy and other issues out of fear they or their daughters won't have freedom of choice. They deserve the truth, but they're not getting it.

At a rally in Houston on Friday with rock star Beyonce, Harris pumped up the fear, telling blue-state and swing-state women voters that "if you think you are protected from a Trump abortion ban because you live in Michigan, Pennsylvania, Nevada, New York or California, please know no one is protected."

That's 100% false. But instead of fact-checking, the liberal media are letting that lie do its dirty work, frightening women to vote for Harris.

Trump has vowed to veto a national ban on abortion. But you don't have to rely on his word.

The U.S. Constitution sets up dual powers, where the states have authority over the health and welfare of residents, and the federal government has only limited, enumerated powers, such as levying taxes and regulating interstate commerce but not regulating most health care matters.

Any effort by Congress to ban abortions would likely be overturned by the courts. That includes Sen. Lindsay Graham's Pain-Capable Unborn Child Protection Act, which would make it a crime to abort a fetus after 20 weeks.

Likewise for the Women's Health Protection Act of 2022, which would guarantee access to abortion, preempting state laws to the contrary. This bill goes so far beyond Congress' enumerated powers that its authors omitted the "findings" section where they're supposed to describe Congress' authority to pass it. There is none.

Same is true for Harris' pledge to codify Roe v. Wade. That's unlikely to fly, short of a constitutional amendment.

In 1905, when a Cambridge, Massachusetts, man challenged a local smallpox vaccine requirement, the Supreme Court ruled that states could require residents to be vaccinated. But the court never has recognized a federal power to do so, even during COVID-19. Vaccination laws vary from state to state, just like abortion laws.

At one time the court allowed Congress to stretch the meaning of the Commerce Clause like a rubber band to authorize federal meddling into virtually anything. No more. In a string of rulings, the court reversed that.

Then in 2007, the court upheld the Partial-Birth Abortion Act, not based on Congress' commerce power but only on Roe v. Wade, a ruling now overturned.

In 2012, when the Supreme Court upheld the Affordable Care Act, the majority relied on Congress' taxing power and expressly repudiated the idea that the Commerce Clause could be used as the basis for health legislation.

No surprise, then, that in 2022 when the court struck down Roe v. Wade, it entrusted abortion to the voters of each state, not Congress.

Pro-choice voters need to know action on reproductive rights has shifted from Washington, D.C., to the state capitols. Ten states have abortion measures on the ballot this November. It's possible to support increasing access to abortion procedures, like Florida's measure does, and still vote for Trump.

The next battle is over abortion pills, or mifepristone, which now account for 63% of terminated pregnancies, according to the Guttmacher Institute. Fourteen states ban it, and three of these states -- Missouri, Kansas and Idaho -- are suing the Federal Drug Administration to make it harder for women to self-abort. Trump said "the federal government should have nothing to do with this issue," infuriating pro-lifers but staying true to the idea that state voters will decide.

That's the legal reality. Instead of hanging with Beyonce, Harris should take a refresher course on the U.S. Constitution and drop the scare tactics.

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Betsy McCaughey is a former Lt. Governor of New York and co-founder of the Committee to Save Our City at saveourcityny.org. Follow her on Twitter @Betsy_McCaughey. To find out more about Betsy McCaughey and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.