Administration Says Congress Lacks Power on Abortion

Bush Administration lawyers contended before a Senate committee Wednesday that Congress lacks the power under the Constitution to protect a woman’s right to abortion if the Supreme Court backs away from its Roe vs. Wade ruling.

In so doing, the Administration undertook a new step in its drive to limit abortion rights--one that could become crucial this summer if Congress approves a proposed law aimed at circumventing a court ruling restricting abortion.

In recent years, attorneys for the Administration have gone to the high court arguing that lawmakers--not federal judges--should decide the volatile abortion issue.

On Wednesday, however, Administration officials made clear that it was state lawmakers they had in mind, not Congress.

But Harvard law professor Laurence H. Tribe and Duke University law professor Walter Dellinger countered that Congress has “ample authority” to regulate the abortion business as part of its broad powers over interstate commerce.

“I’m frankly baffled” because the Administration “has done an about-face on this issue,” Tribe said, having first argued that abortion should be settled in the “political arena” and now opposing a political resolution as unconstitutional.

The occasion for the debate was a hearing before the Senate Labor and Human Resources Committee, which is evaluating a proposed bill known as the “Freedom of Choice Act.”

The measure, backed by Democratic leaders in the Senate and House, would create a federal law prohibiting states from restricting a woman’s right to abortion.

Proponents are pushing for its approval in the belief that the Supreme Court will use a pending Pennsylvania case to restrict abortion rights. They say they have the votes to pass it this summer, but President Bush already has vowed to veto it.

“It is not going to become law as long as I am President of the United States of America,” Bush told the National Assn. of Evangelicals on March 3.

But Administration lawyers went further Wednesday, arguing that Congress has no authority to protect abortion rights.

“Our position is that Congress has no authority over the substance of constitutional guarantees,” Deputy Assistant Atty. Gen. John C. Harrison told Sen. Edward M. Kennedy (D-Mass.), the committee chairman and a proponent of the bill.

In his testimony, however, Tribe called the Administration’s view a “sad echo” of the civil rights battles of the 1960s when Southern lawmakers used a similar argument, maintaining that equal treatment for blacks was a “states’ rights” issue, off-limits to Congress and the Supreme Court.

The extent of Congress’ power over matters such as civil rights or individual liberties has been a recurring subject of legal dispute since the Civil War.

The 14th Amendment of 1868 says no state shall “deprive any person of . . . liberty without due process of law.” Furthermore, the amendment concluded, “Congress shall have the power to enforce” this guarantee “by appropriate legislation.”

In the Roe vs. Wade ruling of 1973, the Supreme Court said this guarantee of liberty is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

This year, however, the Supreme Court is considering whether to back away from that decision and rule instead that the 14th Amendment does not guarantee a right to abortion. If the justices indeed adopt such a view, Administration lawyers contend that Congress would then no longer have the power to enforce protections for a right to abortion.

But Dellinger and Tribe noted that since the New Deal era of the 1930s, the high court has given Congress broad authority to regulate many aspects of American life through its power over interstate commerce.

For example, the Civil Rights Act of 1964, which gave blacks the right to travel freely on public conveyances and stay in hotels, was upheld by the high court as a measure regulating interstate commerce.