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Bill To Make Roe Permanent Unconstitutional: ACLJ Legal Analysis Finds Radical Left Using Leaked Supreme Court Draft Opinion To Push Congress To Pass Unconstitutional Bill


WASHINGTON, May 9, 2022 /PRNewswire/ -- The leak of the draft opinion in Dobbs v. Jackson Women's Health Organization, which would overrule both Roe v. Wade and Planned Parenthood v. Casey, has triggered a meltdown of epic proportions on the pro-abortion side. First, it is important to note that the draft opinion is just that ? a draft ? subject to change and modification between now and whenever the Court releases its final opinion in the case. In addition, the draft opinion, should it in fact become substantially the Court's final opinion, outlaws no abortions anywhere. With that said, our initial legal analysis of the draft opinion concludes that any attempt by Congress to pass a law that would codify or expand Roe v. Wade would be unconstitutional.

The pro-abortion Left has declared that the Apocalypse is upon us. We've long said they worship at the altar of abortion. Now they are displaying a rabid zeal, not only on the streets, but in the media, on social media, and in the halls of Congress, where that same unhinged radicality is driving them to use a stolen leaked Supreme Court draft opinion to pursue abortion legislation that really is as unprecedented in its breadth as it is unconstitutional in law.

We're talking about a pair of bills called the Women's Health Protection Act, H.R. 3755 ("WHPA") and the Reproductive Choice Act, S. 3713 ("RCA"). The first bill, breathtaking in scope, would by design enshrine in federal law what President Biden calls the "right to abort a child."  The WHPA would sweep away every federal, state, and local law that in any way attempts to limit, interfere with, impede, hinder, or even try to regulate abortion on demand and at any stage of pregnancy, up to the moment of birth.

Moreover, the WHPA implicitly abolishes the whole complex of conscience-protecting laws and regulations that Congress and the States have created over the years since Roe to balance the judicially mandated availability of the procedure under Roe with the fact that, for many Americans, participating in that procedure constitutes a violation of their most deeply held religious and ethical values. The WHPA even goes so far as to subordinate to the "right to abort a child" the constitutional right to Free Exercise of Religion by forbidding the application in any abortion-related case of the Religious Freedom Restoration Act of 1993 ("RFRA"). The RCA, a response by pro-choice Senators Collins and Murkowski to the radicality of the WHPA, would at least leave in place conscience protections, including RFRA.

Perhaps not surprisingly, within minutes of the leak of the Dobbs draft, pro-abortion leadership in both houses of Congress announced that they would bring the WHPA to a vote as soon as possible ? as early as next week.

Here at the ACLJ, we responded by having our legal team immediately begin an analysis of both the WHPA and RCA. We have identified the fundamental legal flaws underpinning both bills ? particularly in light of the anticipated overruling of Roe and Casey based on the leaked draft opinion ? and are working to identify legal claims and parties that would have the best chance of succeeding in court challenges we are prepared to bring should either bill be passed by Congress and signed by the President.

Our analysis and research is ongoing, but we have already identified a number of serious constitutional defects in the bills. While the WHPA purports to be an exercise of congressional authority granted by the Commerce Clause, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause, our analysis shows that none of these justifications would be valid, especially if Dobbs overrules Roe and Casey. Moreover, there are serious Tenth Amendment issues that would arise should the draft, or something substantially equivalent, indeed become the final Dobbs decision. The WHPA would also likely sweep away all federal and state laws protecting the conscience rights of health care providers.

In the coming days, we intend to hone our arguments and identify potential parties who would be best positioned, legally, to bring court challenges to the WPHA and/or the RCA should either of them become law. It may be that state attorneys general would be in the best position to mount facial challenges to either law, as both bills amount to unconstitutional encroachments on the principles of federalism that undergird the U.S. Constitution. Individual health care providers and religious hospitals and health care facilities would also likely be able to mount as-applied challenges based on the circumstances as we expect them to play out, especially under the WPHA.

Regardless of what legislation, if any, is ultimately enacted by Congress, the ACLJ will be prepared to help defend innocent human life in the coming days and months. We are delivering our initial legal analysis to each Senate office.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), one of the most prestigious law firms in the country

Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).

MEDIA CONTACT:
Brian Mayes
615-771-2040
[email protected]

http://www.aclj.org 

SOURCE American Center for Law and Justice


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