For decades, the most pressing aspect of any presidential election for many voters has been the candidate’s stance on abortion and his or her ability to appoint Supreme Court justices who share the candidate’s views. The Supreme Court, for its part, regularly resisted attempts at politicization, insisting on stare decisis. The court also regularly reminded litigants, and the world, that the legislature is where the legality of abortion should be decided. Now that the court has abandoned stare decisis, fully dismantled Roe v. Wade and essentially declared itself to be a political body, it may be time to follow the court’s previous guidance and legislate.
This is exactly what U.S. Sens. Elizabeth Warren and Tina Smith suggested in their New York Times op-ed
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the day after the court’s Dobbs v. Jackson Women’s Health Organization ruling was formally issued. Many agree that this is the way forward. The question is how? Democrats hold the Senate, the House and the presidency, but this is not particularly helpful on abortion because health and human safety are states’ rights issues. There is precedent for the federal government securing the states’ cooperation, however. And anyone attempting to legislate abortion access at the federal level would be wise to consider it.In the early 1980s, when the organization Mothers Against Drunk Driving, or MADD, brought the issue of drunken driving to the national policy stage, it faced similar difficulties. The age at which individuals can legally consume alcohol is a health and human safety issue and, therefore, decided by each state. MADD argued on public health grounds and with solid data that raising the drinking age to 21 would dramatically cut drunken driving deaths. Convincing each state to change its laws would have been a very significant task, however, and some states would have resisted such changes, so MADD lobbied at the national level. And it eventually convinced Congress to pass the National Minimum Legal Drinking Act, or NMLDA, in 1984.
The NMLDA cleverly did not mandate that states change their drinking ages to 21 because this would clearly involve federal overreach and almost certainly be shot down by the Supreme Court. Instead, the NMLDA, relying on the Spending Clause in Article I, Section 8, Clause 1 of the Constitution, made the provision of federal highway funding contingent on raising the drinking age to 21. Several states resisted, but, ultimately, all acquiesced, as voters in these states would not have tolerated the tax increases necessary to fill the holes in their highway budgets.
A minimal level of abortion access can be secured in this manner. In this case, Congress obviously cannot make federal highway dollars contingent upon abortion legality and access, as the Supreme Court has several requirements for federal spending that is made contingent on the behavior of the states. But it likely can condition Medicaid spending on abortion access.
It will be a bit of a tightrope walk. The national abortion rights act that is currently being discussed is unlikely to garner the votes necessary to become law, especially if the filibuster remains intact. Thus, those hoping for national-level legislation must devise a way to get senators to cross the aisle. One way to do so would be to take a pragmatic approach and recognize that senators — and their constituents — who do not support abortion rights are not likely to be threatened by the absence of federal Medicaid dollars. But a federal abortion bill that pairs such spending with additional spending on, say, adoption services stands a much better chance of passing.
Such an approach stands a decent chance of allowing legislators to secure abortion access countrywide that would withstand Supreme Court scrutiny. Medicaid is paid directly to the states and then distributed at that level. If Congress were to deny Medicaid funds to any state that, for instance, does not legislate the legality of abortion and ensure access through at least one clinic within its borders, the Supreme Court would have to allow it or scrap South Dakota v. Dole, which would have far-reaching consequences. Dole took up NMLDA and requires that Spending Clause legislation must be made in pursuit of the “general welfare.”
This approach will take time, and women’s lives are literally at stake in the interim. Thus, a medium-term legal strategy is required. Sovereign nations in abortion-banning states can certainly make a legal claim about keeping abortion legal on their land, and members of certain minority groups, Jewish people in particular, can sue to keep abortion access legal in their states on religious liberty grounds. The owners of closed abortion clinics certainly have claims rooted in the Fifth Amendment. Courts are particularly good at slowing things down, and there are many avenues available to secure minimal abortion rights until federal legislation can be put into place.
Of course, the most effective strategy to ensure access to abortion for all is to actually engage in politics — meaning to organize broad coalitions across issue areas at the local and national levels and to organize nationwide nonviolent protests and strikes.
Activists in Latin America and Ireland have taught us that targeted and strategic activism that disrupts daily life for many is required to force legislators to protect the right to abortion for all. It is time activists in the U.S. follow their lead.
Tamara Kay is a professor of global affairs and sociology at the University of Notre Dame. Susan Ostermann is an assistant professor of global affairs and political science at the University of Notre Dame and holds a law degree from Stanford Law School. The authors’ opinions are their own and do not necessarily reflect those of the university.
*Editor’s note: Due to an editing error, an earlier version cited the wrong Supreme Court case in reference to the National Minimum Legal Drinking Act. The Tribune regrets the error.
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