Proposed Federal Abortion Legislation

T he proposed legislation would enact a federal statutory regim e o f abortion regulation that 

leaves the States with substantially less regulatory authority than they have under R o e v. 

Wade or P lanned Parenthood v. Casey.

T he proposed legislation would represent a doubtful exercise of C ongress' pow er to enforce the 

Fourteenth Am endm ent and would rest on a questionable link to C ongress' pow er to regulate 

interstate com m erce.

July 1, 1992

Le t t e r f o r t h e C h a i r m a n

C o m m i t t e e o n La b o r a n d H u m a n Re s o u r c e s

U.S. Se n a t e

This letter presents the views of the Department of Justice concerning the 

amended versions of the Freedom of Choice Act of 1991, introduced as 

companion bills H.R. 25 and S. 25 (collectively “the bill”). The Department 

strongly opposes enactment of this legislation. The recent amendment introduced by Senator Mitchell, making minor changes to the bill, fails to confront 

the bill’s most serious flaws. For the reasons below, if the bill were presented to the President, I and the President’s other senior advisors would 

recommend that he veto this legislation.

The review bill would still prohibit States from enacting reasonable regulatory restrictions on abortions clearly permitted under Roe v. Wade and its 

progeny. It would also represent a doubtful exercise of Congress’ power 

under the Fourteenth Amendment and would rest on a questionable link to 

Congress’ power to regulate interstate commerce.

I. The Revised Bill

The bill is described by its sponsors as a “codification” of much of the 

complex regime of abortion legislation erected by the Supreme Court since 

its 1973 decision in Roe v. Wade, 410 U.S. 113 (1973). The bill as revised 

expressly states its purpose to be “to achieve the same limitations as provided, as a constitutional matter, under the strict scrutiny standard of review 

enunciated in Roe v. Wade and applied in subsequent cases from 1973 to 

1988.” Section 2(b). Because of its sweeping language, however, the bill

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would enact a federal statutory regime of abortion regulation that leaves the 

states with substantially less regulatory authority than under Roe or the Supreme Court’s decision earlier this week in Planned Parenthood v. Casey,

505 U.S. 833 (1992).

The essence of the bill remains substantially unchanged: “[a] State . . . 

may not restrict the freedom of a woman to choose whether or not to terminate a pregnancy before fetal viability,” and after viability the State may not 

restrict abortion if the abortion “is necessary to preserve the life or health of 

the woman.” Section 3(a)(1) and (2).

The revised bill would thus still allow abortions for any reason, even sex 

selection, before the fetus becomes “viable.” With no definition or standards for viability, it appears that the bill could leave that determination to 

the person performing the abortion. Thus a single health care professional’s 

judgment that a particular fetus was not “viable” would be conclusive and 

binding on the state, whether or not the fetus satisfied other objective criteria of “viability” such as a test for weight. It is not even clear that the 

professional judgment must be rendered by a medical doctor.

Even after fetal viability, with no standards for determining what constitutes the “health of the woman” justifying an abortion, the revised bill would 

still go well beyond merely “codifying” Roe. As we have explained in 

earlier statements and testimony, we believe that the term “health” in section 

3(a)(2) would likely be construed broadly. See Doe v. Bolton, 410 U.S. 179 

(1973). The Court there noted that the medical judgment must be made in 

light of all factors, including “emotional, psychological, [and] familial” factors. Id. at 192. It is likely, therefore, that even after viability an abortion 

performed for any reason that a medical professional (who, again, apparently need not be a licensed physician) deemed “relevant to the well-being” 

of the woman, id., would probably be protected under the bill as “necessary 

to preserve the life or health of the woman.” Section 3(a)(2).

The revised bill purports to address a few of the concerns the Department 

has raised previously. These changes, however, do not fully meet the 

Department’s concerns on the issues they address, and leave many more 

serious flaws unaddressed.

For example, the revised bill allows some degree of parental participation 

in the decision of a minor to undergo an abortion. However, it provides 6nly 

that the state could require the minor to “involve” the parent in the decision. 

Section 3(b)(3). The term “involve” is left undefined. It is troubling that 

the bill’s authors chose an inherently vague term over more definite words 

such as “notify” and “consent.” It is simply unclear whether the bill would 

exclude parental consent requirements. The bill could thus be read to invalidate laws in the twenty-one states that require some form of parental consent, 

including the Pennsylvania abortion statute upheld this week by the Supreme Court in Casey.

So read, the bill would go well beyond Roe and later cases. In Bellotti v. 

Baird, 443 U.S. 622, 647 (1979), for example, a plurality of the Court ruled
that a parental consent requirement for abortions by minors would be constitutional if it contained a judicial bypass provision. And in Planned Parenthood

Association v. Ashcroft, 462 U.S. 476, 493-94 (1983), the Court upheld another parental consent provision with a judicial bypass. The bill could be 

read to overrule these cases to the extent they permitted such consent provisions. The bill would not, therefore, codify Roe as “applied in subsequent 

cases from 1973 to 1988,” as it claims to do. Section 2(b).

Although the revised bill would permit States to protect the rights of 

unwilling individuals to refrain from performing abortions, the bill does not 

permit institutions to refuse to perform abortions. Thus, a hospital whose 

board or sponsoring organization was opposed to abortions could nevertheless be held liable for refusing to perform them. Indeed, the bill could now 

be read to require institutions to hire willing individuals in order to provide 

abortion services. Similarly, although the Senate bill has been amended to 

allow a state to refuse to pay for abortions, section 3(b)(2), nothing in that 

provision or any other part of the bill appears to permit a state to deny the 

use of a state facility to a woman who was willing to pay for the abortion. 

The bill might even be construed to require the states to provide state facilities for abortions where private facilities are unavailable.

Further, the revised bill contains no exception for informed consent and 

waiting periods. State laws requiring that factual information concerning 

the nature of the abortion procedure and available alternatives be made available to a woman twenty-four or forty-eight hours prior to an abortion would 

thus be invalidated. Thirty-two states currently have such laws. The purpose of such provisions is typically to ensure that the woman’s decision to 

abort is free, reflective and informed. That state purpose would be illegitimate under the bill.

II. Congressional Authority

The bill has been significantly revised to address the Congress’ power to 

adopt it. The bill asserts that Congress has the authority to enact the bill 

under both the Commerce Clause (Article I, Section 8) and Section 5 of the 

Fourteenth Amendment of the Constitution. See section 2(a)(4). We continue to doubt whether Congress has authority to enact this legislation on the 

proffered grounds.

In commenting on earlier versions of this legislation, we criticized the 

suggested reliance on Congress’ power under Section 5 of the Fourteenth 

Amendment, arguing that the Section 5 authority does not extend to fixing 

the content of the amendment’s substantive provisions. We are therefore 

pleased that the bill now acknowledges that “Congress may not by legislation create constitutional rights” and purports to create only “statutory rights.” 

Section 2(a)(3).

Having recognized that Congress may not create constitutional rights or

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alter their content, the bill’s drafters have now sought to assert a connection 

between recognized constitutional rights and the statutory right to abortion 

that the bill would adopt. That assertion, however, is unpersuasive.

For example, the bill suggests that the statutory rights it creates would 

protect “liberty.” Section 2(a)(4). The Fourteenth Amendment, however, 

prohibits only certain deprivations of liberty, for instance those that have no 

rational relationship with a legitimate state interest; were it to prohibit all 

deprivations of liberty, it would forbid an enormous range of laws including 

laws against homicide. Thus, to say that a proposed federal statute prevents 

the states from restricting liberty in general is to say almost nothing about 

whether the federal statute in any way implements the commands of the 

Fourteenth Amendment. The bill also asserts that state restrictions on abortion interfere with women’s exercise of constitutional rights unrelated to 

abortion. Section 2(a)(2)(D). The bill does not say what these other rights 

are, so it is impossible to tell how it would keep the states from interfering 

with them.

As we have noted with respect to earlier versions of this legislation, Congress’ power under the Commerce Clause has been held to be quite broad. It 

is likely that Congress could enact some legislation concerning abortion 

pursuant to that power. The arguments now put forward to support this 

legislation under the Commerce Clause, however, are still troublesome. For 

example, the bill finds that restrictions on abortion “burden interstate commerce by forcing women to travel from States in which legal barriers render 

contraception or abortion unavailable or unsafe to other States or foreign 

nations.” Section 2(a)(2)(A)(ii). We fail to see how any increased interstate 

travel resulting from diverse state laws regulating abortion would constitute 

a burden on commerce. Moreover, the argument that travel from one jurisdiction to another justifies a single national abortion law on commerce 

grounds proves too much, for it could justify uniform federal laws on any 

subject, which is inconsistent with the notion of the federal government as a 

government of limited powers.

Finally, in our view Congress’ intervention in this area would usurp a 

field of legislation traditionally reserved to the states. As must be obvious 

from the public reaction this week to the Supreme Court’s Casey decision, 

the policy choices in this area are difficult and national consensus is elusive. 

The political outcomes of fifty distinct state processes would be far more 

likely to represent the genuine diversity of views that exists on this subject 

than would a uniform federal code entrenching a more restrictive regime 

than that of Roe and Casey. Observance of federalism is thus particularly 

desirable with respect to abortion regulation.

In keeping with the President’s position that “[a]s a nation, we must 

protect the unborn,” Message to the House of Representatives Returning 

Without Approval the District of Columbia Appropriations Act, 1990, 2 Pub. 

Papers of George Bush 1563 (Nov. 20, 1989), and for the reasons explained 

above, the Department of Justice opposes the enactment of the bill, and if

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the bill were presented to the President in its current form, I and the President’s 

other senior advisors would recommend a veto.

Sincerely,

WILLIAM P. BARR 

Attorney General

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