House Democrats passed the Women’s Health Protection Act (WHPA) last year, but it stalled in the Senate. It’s expected to fail again this week. But that isn’t stopping Mr. Schumer, who is refusing to take up a bill by GOP Sens.

Susan Collins

and

Lisa Murkowski,

who have their own proposal to codify Roe v. Wade. “I have long supported a woman’s right to choose,” Ms. Murkowski said, “but my position is not without limits, and this partisan Women’s Health Protection Act simply goes too far.”

***

Bill Clinton’s

artful framing was that abortion should be “safe, legal and rare,” but that’s ancient history to today’s Democrats. The WHPA would guarantee abortion access “at any point or points in time prior to fetal viability,” about 23 weeks. Women seeking such services could not be asked to “disclose the patient’s reason.” Some states have tried to prohibit sex-selective abortion, the practice usually of terminating a girl merely because a boy is desired. The WHPA appears to protect that choice.

After fetal viability, the WHPA would assure a right to an abortion whenever the physician’s “good-faith medical judgment” is that “the pregnancy would pose a risk to the pregnant patient’s life or health.” What counts as “health”? This is sometimes defined to include mental, emotional or familial factors, a loophole that permits elective abortions, more or less, through all nine months of pregnancy.

The legislation also exempts itself from the Religious Freedom Restoration Act, which is why Ms. Collins says it would undercut “basic conscience protections” for religious healthcare providers. In its findings, the bill says abortion access “has been obstructed” by state “parental involvement laws (notification and consent).”

Is the Democratic policy in 2022 that abortion should be safe, legal and don’t tell your parents? “Ultimately I feel that young women at a certain age should have the rights to make these kind of decisions with their doctor,” Arizona Sen.

Mark Kelly

told National Review reporter

John McCormack.

“I’m not going to be the arbiter of an age and a timeline.” Nobody is asking him to be the arbiter. Yet he’s voting to nullify state laws.

A national abortion bill is also constitutionally suspect. If the Supreme Court overturns Roe, the federal government will lack any 14th Amendment justification to override state abortion laws. The WHPA could be left relying on Congress’s power to “regulate Commerce” among the states.

But the Commerce Clause isn’t unlimited, and Congress can’t overrule the constitutional police powers of the 50 states. It can ban some activity that a state allows, such as marijuana cultivation in California (Gonzales v. Raich, 2005) when there is arguably an interstate market in the drug. But abortion is a medical procedure provided and regulated locally or by states.

Some states are likely to ban abortion if Roe falls. If Congress can then compel the legality of abortions that are banned by state law, there is no limiting principle to what traditional sphere of state power it can’t oversee under the Commerce Clause. Why not local zoning or prostitution laws?

By the way, in voting for a national abortion law, Democrats may be creating an open door for Republicans to do the same when they next hold power. This would be as constitutionally dubious as Mr. Schumer’s bill, but Democrats will have made it easier for the GOP to ignore the Constitution too.

Similar logic probably applies to the Partial-Birth Abortion Ban Act that Congress passed in 2003. The Justices upheld that law against a different set of arguments. Yet as Justice

Clarence Thomas

noted in a concurrence: “Whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court.” If Roe falls, it’s hard to justify under the Commerce Clause.

As for Democratic calls to kill the Senate filibuster, do they really want abortion policy in 50 states to flip-flop depending on who wins the next Senate race in Georgia or Wisconsin? The wise move is to table the WHPA. Then Democrats can fight it out in the states, the constitutional way, for the abortion policy they want.