Kamala Harris made news this past week by proposing that state laws restricting abortions be subject to preclearance by the U.S. Justice Department. The proposal is modeled after the preclearance provisions of the Voting Rights Act of 1965 which forced state and counties with a history of discrimination to get preclearance from the federal government to make changes in their election procedures. The Feds blocked 86 measures in several states under voting rights preclearance. Preclearance for abortion restrictions could have just as big an impact - abortion restrictions have been enacted in ten states so far this year.
In 2013, the Supreme Court knocked down part of the voting rights preclearance scheme. The Court found that the formula used to determine whether states were still discriminating against minority voters were out of date and the Justice Department was acting like nothing had changed in the last 50 years when it clearly had. As applied, preclearance had become unconstitutional, violating the Tenth Amendment. [Shelby County v. Holder, 2013] “The Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including ‘the power to regulate elections.’” Id. The Court found that the federal government could not disrupt the “equal sovereignty” of the states - that is, treat them differently from each other - on the basis of out-of-date information. [more here]
But here’s the rub: the Supreme Court did not say preclearance itself is unconstitutional or against the Tenth Amendment. Instead, it said Congress can mandate preclearance under “exceptional conditions”. Literacy tests and poll taxes were the “exceptional conditions” justifying preclearance in the voting rights context.
The analysis in the abortion context is different, and is of no comfort to friends of limited government. States have the power to regulate elections, but the Supreme Court declared a federal fundamental right to abortion in the Roe v. Wade case. The Court federalized the abortion issue and didn’t leave much in the way of state power on the issue. States can try, even citing health and safety concerns, but state restrictions on abortion can get knocked down if they are deemed an “undue burden” on the federal fundamental right to abortion. This has been the basic set-up since the Planned Parenthood v. Casey decision in 1992.
We may not like it but, because of the way constitutional law has gone in this country, a President Kamala Harris would have at least as strong a case in asking Congress to enact preclearance in the abortion context as there was in the voting rights context. She can cite all the recent attempts to restrict abortions, claim that the heartbeat and other types of bills are “undue burdens” on the right to abortions, and say to Congress “exceptional conditions” exist to justify preclearance and require affected states to come begging to Washington before their legislatures can even take up any abortion bills at all. She’s not crazy, and that’s a problem for friends of the Tenth Amendment and limited government.