The Argument For Congress To Act To Protect Abortion Rights

NPR's Rachel Martin talks to Georgetown University law professor Neal Kumar Katyal about his argument that Congress, not the Supreme Court, needs to protect abortion rights in the United States.

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RACHEL MARTIN, HOST:

So the Supreme Court's refusal to block this anti-abortion law in Texas comes as it prepares to take up another abortion law case from Mississippi. What does all this mean for Roe v. Wade? This is the 1973 Supreme Court case that legalized abortion. I talked with Neal Katyal - he's a Georgetown University law professor and former U.S. acting solicitor general - about this. He argues that Congress, not the Supreme Court, needs to protect abortion rights.

NEAL KATYAL: There has been a concerted effort on the part of the Republican Party since Roe was decided in 1973. And it looks like that effort is now succeeding at the Supreme Court. Things have really changed in the last 50 years due to this orchestrated campaign. And both the action in Texas this past week, as well as the Mississippi case, lead me to worry that Roe v. Wade is on the way out.

MARTIN: What role does Congress have in protecting Roe?

KATYAL: In our constitutional system, there are two different ways to protect people's individual rights. One is the courts strike down some law that violates the Constitution. So they say there's a right to choose, a right to privacy. And therefore, if Texas passes an abortion law, it gets struck down. But there's a whole separate way, which is Congress itself can directly guarantee those rights. And they do so all the time. All of the laws on, you know, race discrimination and employment, for example - those are all laws passed by Congress. And so Congress can go way above and beyond what the courts themselves provide.

And right now, you have legislation pending in Congress that's almost got a majority of senators and representatives as co-sponsors that says, we are going to codify the rights in Roe v. Wade. And this is something known as the preemption power in our Constitution that allows the federal government to sweep away laws of the states that conflict with a federal right.

MARTIN: So how would that work in practice? I mean, Democrats have such a slim majority at this point.

KATYAL: Right. They need to get a majority. But my view is they only need a simple majority. I don't think that they should need to have to play by the filibuster rules. Certainly, the Republicans can try that and try and say it has to be 60 votes. But I think that's a little hard for them, given the fact that it was the Republicans for the last four years that nuked the filibuster, that got rid of it because they said the Supreme Court nominees should be not subject to the filibuster. Now, if those three justices aren't subject to the filibuster, which is a lifetime appointment, then it seems to me a statute, like this one we're talking about in Congress, shouldn't have to play by the filibuster rules, either.

MARTIN: I mean, that would be an extraordinary move on the part of Congress. I mean, is it something that the court would abide?

KATYAL: So 100% it's an extraordinary move, but we are in an extraordinary situation. If Congress did pass such a law, there is no way for the Supreme Court to strike it down. It is obviously constitutional through and through. And so the only question is, do the Democrats have the will and the power to get this law passed?

MARTIN: May I ask you to just explain why the Mississippi case threatens Roe v. Wade in a way the Texas case doesn't?

KATYAL: So the Mississippi case allows a ban on abortion after 15 weeks and enforced by the state. The Texas law, by contrast, bans abortion after six weeks, and most women don't find out that they're pregnant until after that. So it is a de facto ban on all abortion in Texas. So the Texas law is actually worse. It encompasses more.

But the way they drafted it because they were so scared that it was unconstitutional is they have a kind of bogus enforcement provision. The state can't enforce it; it's private individuals, kind of vigilantes. And what the Supreme Court this week said is, well, we don't know whether any of these vigilantes will actually ever bring these suits. So we're just not going to get involved right now. That is legal fiction, to put it mildly. But nonetheless, right now, the Supreme Court doesn't have a square case coming at it from Texas. It'll have to wait for some vigilante to enforce it.

MARTIN: And Mississippi gives that very crystalized case on the substance of the issue of abortion rights.

KATYAL: Exactly. It's already there. It's already enforced. And indeed, the Supreme Court has agreed to hear the case this fall. And Mississippi has already filed their brief. And front and center in their brief is Roe v. Wade should be overruled.

MARTIN: Neal Katyal, law professor at Georgetown University, former acting solicitor general of the United States, thank you. We appreciate it.

KATYAL: Thank you so much.

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