Republicans Who Pass Abortion Bans Are Violating Their Solemn Oaths
By Michael Rosenzweig
Republican-led legislatures across the country are passing abortion bans that could be the stuff of dystopian novels. Unfortunately, they are all too real. Alabama recently banned virtually all abortions, and other states, including Georgia, have enacted so-called fetal-heartbeat bills, which ban abortion extremely early in pregnancy. These draconian laws are plainly unconstitutional under Roe v. Wade, as every legislator who voted for one of these bills well knows.
In Roe, the Supreme Court held that a woman’s right to terminate her pregnancy derives from the right to privacy protected by the 14th amendment to the Constitution. Roe makes clear that prior to fetal viability, governments are barred from prohibiting abortions; during that time, the decision to have an abortion is for the woman and her doctor to make. Period.
Roe v. Wade has been the law of the land since 1973, and its essential ruling was re-affirmed by the Court in 1992, in Planned Parenthood v. Casey. Both cases staunchly protect, as a matter of constitutional law, a woman’s unfettered right to choose to have an abortion during the first trimester of her pregnancy. Abortion bans and fetal-heartbeat laws therefore violate well-established constitutional law. Yet Republican-controlled legislatures are passing these unconstitutional bills in the hope that they will be challenged, and that Roe and Planned Parenthood will be overruled (or weakened) by today’s Supreme Court.
This moment reminds us that elections matter. None of this legislation would pass if Democrats, who are unapologetically pro-choice, controlled these state legislatures, and no Democratic president would nominate Supreme Court justices likely to ignore well-established precedent such as Roe v. Wade.
But there’s another very important lesson here. Alabama, Georgia and other states enacting these laws require that all legislators take a solemn oath to support and defend the Constitution. All of it. Elected officials who facilitate the passage of a bill they know to be unconstitutional are blatantly violating their oaths of office. Those oaths require them to support and defend the Constitution as interpreted by existing Supreme Court precedent, not the Constitution they so fervently prefer. By passing laws that flatly conflict with Roe and Planned Parenthood, these legislators have irresponsibly put their own ideologies ahead of the Constitution (and, not incidentally, seriously threatened the wellbeing of women in their states).
To be sure, legislators who believe in good faith that laws they enact are constitutional have not violated their oaths of office. But while reasonable minds can differ on certain matters, there can be no dispute that legislators passing these new laws have no such good-faith belief. To be clear, our jurisprudential tradition certainly allows Supreme Court precedents to be overturned. Where the science or societal norms supporting a decision have changed significantly, overturning that decision is legitimate. This is why, for example, nobody questions the Supreme Court’s 1954 decision in Brown v. Board of Education to overturn Plessy v. Ferguson and thereby reject the “separate but equal” doctrine that case upheld. But no such societal change or scientific progress has occurred since Roe and Planned Parenthood that justifies overturning those decisions and, in any case, they remain the law of the land today. No legislator voting for one of the recent anti-choice laws could possibly believe otherwise in good faith. Simply put, their votes represent a cynical effort knowingly to advance unconstitutional legislation to satisfy their ideological objectives. Those votes are therefore blatant violations of their oaths of office.
Our principal focus, of course, must be the horrible potential impact of these laws on women’s health and liberty. But we should not lose sight of the broader disdain for the rule of law that Republicans have embraced. In this sense, the eagerness of Republican legislators to pass laws they know to be unconstitutional is very much like the Trump administration’s refusal to comply with Congress’s reasonable and lawful requests for information. Both represent lawlessness by public officials unlike any we have ever witnessed.
Callously endangering the lives of women and trampling on their constitutional rights is unacceptable, just as knowingly violating one’s solemn oath of office is unacceptable. For both offenses these Republican legislators have violated the public’s trust and must be resoundingly rejected by voters.
Michael Rosenzweig is the Secretary of the Board of Directors of the Jewish Democratic Council of America (JDCA)
