Politics

Getting The Courts To Uphold Kamala Harris's Abortion Plan Is More Difficult Than Getting Them To Defend Abortion

Her plan would really help, and be eviscerated by John Roberts.

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Senator Kamala Harris (Photo credit by NOAH BERGER/AFP/Getty Images)

For today’s installment of “Democrats have great plans that are almost certainly unconstitutional,” I want to look at Senator Kamala Harris’s bold ideas to make abortions accessible in all 50 states, as opposed to just the states that haven’t been taken over by Republican men.

The Harris plan brings back the notion of “pre-clearance,” used so successfully to protect voting rights in the South, to protect abortion access from Republican legislatures. From The Atlantic:

Harris’s plan attempts to circumvent these obstacles by leveraging federal power to provide a check on initiatives in conservative states. She has proposed that states and localities “with a history of violating Roe v. Wade” obtain approval from the Justice Department “before any abortion law or practice can take effect.” In a South Carolina town hall on MSNBC Tuesday night, she laid down a clear challenge to the conservative states moving to restrict abortion access. Harris intends to require that “states that have a history of passing legislation that is designed to prevent or limit a woman’s access to reproductive health care … come before my Department of Justice for a review and approval,” she said. “Until we determine that they are constitutional, they will not take effect.”

As usual with the plans put forward by Democratic candidates, this one seems to run into the problem that Mitch McConnell exists. Unless Democrats re-take the Senate, with a filibuster-proof majority (or do away with the filibuster), it seems like Republicans would be able to block this idea.

But Harris is more smart and more subtle here than people are giving her credit for. While, yes, previous pre-clearance plans have taken the form of legislation passed by Congress, Harris here is clearly contemplating doing it by executive order. States will have to come before “my Department of Justice for a review and approval.” From where I sit, while Harris’s plans are not as sweeping as Elizabeth Warren’s or Bernie Sanders’s, hers have been more carefully tailored to what a President may be able to do by executive fiat. I don’t know that pre-clearance by executive order actually works as a Constitutional matter, but that’s the thought here. She’s entertaining the possibility of cutting McConnell and the Republicans out of the loop entirely and letting the courts decide if she has the authority.

Speaking of those courts tho… it’s an entirely masturbatory conversation about whether Harris has the executive authority to enact a pre-clearance regime for abortion rights because the current conservative Supreme Court rejects pre-clearance because pre-clearance hurts the project of white supremacy. The Roberts Court would reject this plan as soon as humanly possible, and we know that because of the Court’s decision in Shelby County v. Holder.

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In Shelby County, Roberts eviscerated the part of the Voting Rights Act which required states to get pre-clearance before they re-instituted Jim Crow laws to suppress the voting rights of nonwhites. To stop this regime, which was only one of the most effective methods of securing minority voting rights in the history of the country, Roberts declared racism over in the South and tied any thought of pre-clearance to current standards:

Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision

Harris purports to get around this ruling by tying her pre-clearance regime to “current” conditions where states have suppressed abortion access. But this makes the mistake of listening to what Roberts is saying as opposed to looking at what he is doing. Yes, Roberts is saying that the problem with pre-clearance is that racism has already been defeated. Yes, that suggests that if you could prove, to John Roberts’s white satisfaction, that racism was indeed still a problem in some states, he might authorize a pre-clearance regime. But what Roberts is actually trying to tell you in Shelby County is that pre-clearance is an unconstitutional solution that amounts to an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” There is likely nothing that justifies such a “departure” in Roberts’s mind, 400 years of slavery and oppression be damned.

And this is how Roberts reacts to, again, the most successful civil rights legislation in American history. We have an entire Amendment dedicated to the notion that black people get to vote now, and Roberts is willing to reject its implementation on the very “state’s rights” grounds that were used to justify slavery. If Shelby County represents Roberts’s deep antipathy to the notion of nonwhites participating in democracy, can you imagine how he’s going to react to the notion that women should have autonomous control over their own bodies?

Wherever we are on voting rights, the fundamental principle that “people should get to vote” is at least widely accepted. Even conservatives have to at least pretend that they agree. We’re not there with abortion. Many conservatives deny that such a right even exists under our Constitution. Even the conservatives who acknowledge such a right think it can be denied in many cases.

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Harris’s plan is presented as a counter to the destruction of the right to choose as expressed in Roe v. Wade and Planned Parenthood v. Casey. But it would actually be easier to get conservatives on board with upholding those cases than it is to get conservatives to uphold pre-clearance. That’s precisely because pre-clearance is far more powerful of a protection for abortion (or any other right) than even a Constitutional Amendment acknowledging that right.

Pre-clearance is how we stop states from doing bad things. All the conservatives understand that stopping states from doing bad things hurts their agenda. Before Roberts was willing to go full white supremacist, you could get conservatives to accept pre-clearance in this one area where the attempts to suppress voting rights were so obvious, historical, and effective that they could think of no other way to do it. Now that they don’t even have to pretend to care about voting rights, there’s no way they’ll get on board to defend a woman’s right to choose with this ultimate solution. I don’t even know that you’d get a majority of moderate Democrats to go to the mattresses for abortion rights in this way.

Getting courts to rule all of these anti-woman laws unconstitutional on a case-by-case basis is actually a lot easier than getting courts to agree that the states can’t pass these laws in the first place. Harris is right, her plan would work to protect abortion rights and access. It would be so effective that it would never, ever happen.

A New Age of Conflict Between Washington and the States [Atlantic]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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