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These Republicans supporting states' rights on abortion back a federal ban [1]
['Glenn Kessler', 'The Fact Checker']
Date: 2022-09-07
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When the Supreme Court in June overturned Roe v. Wade, which in 1973 established a nationwide right to an abortion, Supreme Court Justice Samuel Alito wrote in his majority opinion for Dobbs v. Jackson that the legality of abortion would now be up to individual states. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito said. “Roe and Casey [in 1992] arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Many Republican foes of abortion celebrated the ruling as a victory for states’ rights. Yet since Alito’s draft opinion was leaked on May 2, 28 lawmakers have also signed onto a proposed nationwide ban — one that would impose abortion restrictions even in Democrat-led, pro-abortion rights states.
This would seem to be a direct contradiction to the idea that states could chart their own course. Blue states that have less restrictive laws in place suddenly would find those laws overridden by a federal law.
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The Heartbeat Protection Act was introduced in Congress in February of 2021. The text of the law would require an ultrasound technician to check for cardiac activity before an abortion — and then prohibit the procedure if any activity can be detected. This would effectively ban most abortions, as many women would not realize they are pregnant until after this point. Some other laws proposed by Republicans would be even more restrictive.
As a reader service, here’s a full list of these lawmakers, along with their comments on Dobbs and the date they co-sponsored the Heartbeat Protection Act.
We repeatedly sought an explanation for the apparent contradiction, but only six lawmakers responded. Some said that their comments on Dobbs did not rule out a federal response such as the heartbeat law — while one said that Democrats’ efforts to push for abortion rights at a national level meant the issue will continue to be fought at the federal level. In some cases, the remarks are open to interpretation, so we have noted those. The names are presented in alphabetical order in each category.
Lawmakers with remarks that appear contradictory
Rep. Jack Bergman (Michigan) — co-sponsored June 16, 2022
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Dobbs comment, in a Facebook post: “The ruling today on Roe v. Wade properly returns power to the states and ends decades of bad precedent.”
Explanation: No response.
Rep. Mike Bost (Illinois) — co-sponsored May 28
Dobbs comment, in a tweet: “I agree wholeheartedly with the Supreme Court’s decision to restore power to the American people to determine for themselves how abortion services are regulated in their state.”
Explanation: No response.
Rep. Ken Buck (Colorado) — co-sponsored May 27
Dobbs comment, in a news release: “The power to decide this profound moral question has officially returned to the states, where it will be debated and settled in the way it should be in our democratic society — by the people.”
Explanation: No response.
Rep. Tom Emmer (Minnesota) — co-sponsored July 11
Dobbs comment, in a statement: “Every life is precious, and the decision to defend it should remain with the states.”
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Explanation: No response.
Rep. Russ Fulcher (Idaho) — co-sponsored June 16
Dobbs comment, in a tweet: The ruling “is a momentous victory for life and an affirmation of our federalist system. States, as the Constitutionally prescribed authority on this matter, will now have the opportunity to enact policies that promote a culture of life.”
Explanation: No response.
Rep. Paul A. Gosar (Arizona) — co-sponsored July 11
Dobbs comment, during a discussion at a church: “This is not a federal issue, this is a state issue. We the people. The states gave the federal government limited powers and we have to take them back.”
Explanation: No response.
Rep. Kevin Hern (Oklahoma) — co-sponsored July 12
Dobbs comment, in a statement: “The Supreme Court correctly reversed this unconstitutional decision and returned the question to the states.”
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Explanation: No response.
Rep. Yvette Herrell (New Mexico) — co-sponsored June 16
Dobbs comment, in a statement: “Today, the Supreme Court has finally returned the question of abortion to the 50 states and restored the democratic right of Americans to defend the unborn.”
Explanation: No response.
Rep. Clay Higgins (Louisiana) — co-sponsored May 27
Dobbs comment, in a news release: “Today’s ruling is a major victory for life. The sovereign states will now have greater authority to implement strong pro-life protections.”
Explanation: No response.
Rep. Doug Lamborn (Colorado) — co-sponsored July 11
Dobbs comment, in a statement: “While today we are rejoicing, the fight now turns to the states where the American people must go on the offense for life.”
Explanation: No response.
Rep. Jake LaTurner (Kansas) — co-sponsored May 11
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Dobbs comment, in a news release: “Overturning Roe ensures state and local officials closest to the people they represent, not unelected judges in Washington, construct our nation’s abortion laws.”
Explanation: No response.
Rep. Thomas Massie (Kentucky) — co-sponsored May 10
Dobbs comment, in a tweet: “The Supreme Court has taken two great steps to save lives in the past 48 hours: it reaffirmed Heller’s decision regarding self-defense rights and repealed Roe v. Wade to allow state legislatures to defend the unborn.”
Explanation: No response.
Rep. David B. McKinley (West Virginia) — co-sponsored May 10
Dobbs comment, in a news release: “This decision returns the power to the states to protect the unborn.”
Explanation: No response.
Rep. Barry Moore (Alabama) — co-sponsored May 10
Dobbs comment, in a news release: “The Dobbs decision affirming no constitutional right to abortion and leaving the matter to each state is the single greatest step to protecting life in generations and will save countless lives of unborn children.”
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Explanation: No response.
Rep. Blake D. Moore (Utah)— co-sponsored May 10
Dobbs comment, in a news release: “The ruling gives back to states like Utah their constitutional authority to protect the lives of millions of children and support expecting mothers.”
Explanation: No response.
Rep. Markwayne Mullin (Oklahoma) — co-sponsored June 13
Dobbs comment, in a statement: “I am grateful for the system of checks and balances that allows for judicial review of prior decisions. And I am grateful as well for the affirmation of States’ rights, allowing states like Oklahoma to elevate life.”
Explanation: No response
Rep. Jason T. Smith (Missouri) — co-sponsored June 13
Dobbs comment, in a statement: “The Court’s decision makes clear that the Constitution gives state legislatures — not unelected judges — the freedom to answer the question of when life begins.”
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Explanation: No response.
Rep. Bryan Steil (Wisconsin) — co-sponsored June 13
Dobbs comment, in a news release: “Today’s decision will bring this important issue back to the states. This is a great victory for life.”
Explanation: No response.
Lawmakers with comments open to interpretation
Rep. Jodey Arrington (Texas) — co-sponsored May 27
Dobbs comment, in a tweet: “By creating a national abortion policy in 1973, the Supreme Court acted as a legislative body, which severed the constitutional separation of powers and undermined the sovereignty of states and our citizens.”
Explanation: No response. Arrington’s reference to the Supreme Court acting as a “legislative body” could be interpreted as suggesting legislation at the federal level was acceptable.
Rep. Jim Baird (Indiana) — co-sponsored May 27
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Dobbs comment, in a news release: “Today’s decision represents not only a great victory in the fight to preserve life at every stage and for states’ rights, but the opportunity to right a wrong. The right to life is the cornerstone of American principles and now states will have the ability to protect life at every stage, restoring some balance to our federalist system.”
Explanation: No response. Baird refers to a “federalist system” which does not rule out a role for Congress.
Rep. Tracey Mann (Kansas) — co-sponsored July 13
Dobbs comment, in a news release: “The U.S. Supreme Court does not have constitutional grounds to legalize abortion services nationwide, and the ruling in 1973 stripped away the states’ rights to decide …. Today’s decision gives the power back to the American people as designed in our Constitution.”
Explanation: No response. The reference to the “American people” could be code for federal action.
Rep. Greg Murphy (North Carolina) — co-sponsored May 27
Dobbs comment, in a news release: “Roe v. Wade was errantly constructed, both as an assault on the unalienable right to life, as well as a gross violation of the 14th Amendment — overriding states’ rights in the name of federal overreach. The Supreme Court’s ruling is constitutionally valid, as the decision on abortion will now rightfully be returned to the American people and their elected representatives.”
Explanation: No response. The reference to “the American people and their elected representatives” could suggest federal action is permissible.
Lawmakers with explanations
Rep. Dan Crenshaw (Texas) — co-sponsored May 11
Dobbs comment, in a tweet: “Roe v Wade was overturned. Historic. The issue goes back to the states, back to the people.”
Explanation: Justin Discigil, Crenshaw’s chief of staff, said the reference to “the people” also referred to possible federal action. “The point of the 17-word tweet you’re trying to parse here is that following the overturning of Roe this issue is returned to the people and their elected representatives, whether that be at the state or federal level,” he said in an email.
Rep. H. Morgan Griffith (Virginia) — co-sponsored June 13
Dobbs comment, in a news release: “The Court has returned to the individual states the ability to make their own decisions on this issue.”
Explanation: “It would have been my preference for abortion to be a state issue as indicated in the leaked Supreme Court opinion,” Griffith told the Fact Checker. “However, it is clear that Congress will take a role, as there have been numerous bills introduced. Since the Supreme Court Dobbs opinion, several bills have already come to the floor for a vote.”
Rep. Ronny Jackson (Texas) — co-sponsored May 10
Dobbs comment in a news release: “Today, we celebrate the sanctity of life and the return of a court that concerns itself with the Constitutionality of law, rather than writing it. Each state must now stand up for life and protect the most vulnerable among us.”
Explanation: A spokesman said his comments envisioned a federal role. “Congressman Jackson did not say that protecting innocent life was narrowly a state issue, he called on the states to enact pro-life legislation now that the heinous Roe v. Wade decision is no longer a roadblock. Congressman Jackson has and will continue to advocate for policies that protect the unborn at every level of government.”
Rep. Barry Loudermilk (Georgia) — co-sponsored May 27
Dobbs comment, in a Twitter thread: “This decision effectively returns the power to decide abortion policy back to where it was intended to reside, with the American people and their state governments.”
Explanation: “I signed onto the Heartbeat Protection Act in May, which was before the Supreme Court issued the Dobbs decision in June,” Loudermilk told the Fact Checker. “The Supreme Court decision in Dobbs vs. Jackson held that the Constitution of the United States does not confer a right to abortion, and returned the issue of abortion back to the state legislatures. I will continue to work on and support legislation that protects life, within the constitutional authority of Congress.”
Rep. Nancy Mace (South Carolina) — co-sponsored May 10
Dobbs comment, in a news release: “Today’s ruling returns power back to the states and power back to Congress on policies pertaining to life, where it rightfully belongs. This ruling protects federalism inherent in our Constitution and also returns this power back to the people and those they elected to represent them.”
Explanation: John Seibels, a spokesman for Mace, noted that her statement referenced “power back to Congress” and so there was no contradiction in supporting a federal law. He forwarded a recent opinion article by Mace, who has spoken publicly about being raped at 16, that decried efforts in her state to remove a rape exception from the state’s heartbeat law. “The first fact we need to get right is that the U.S. Supreme Court’s decision to overturn Roe did not outlaw abortion across the country, or in any part of it,” Mace wrote. “The Dobbs decision simply took the issue out of the federal courts and put it in the hands of state and federal legislators.”
Rep. Daniel Webster (Florida) — co-sponsored May 10
Dobbs comment, in a news release: “This ruling rightfully recognizes states’ rights and returns power to the American people and their state representatives.”
Explanation: He said he was noting the practical result of the Supreme Court on state policy, but not ruling out federal action. “I am pro-life and believe the right to life is the first God-given right and one of three unalienable rights promised to all individuals in the Declaration of Independence,” Webster told the Fact Checker. “For decades, I have fought to defend the rights of the unborn, to stand for life and to oppose attempts to remove pro-life protections for the unborn at both the state and federal levels.”
The Bottom Line
Crenshaw, Jackson, Mace and Webster say that their comments on Dobbs did not rule out federal action, though it appears only Mace was clear about that at the time. Griffith says that Democrats pressing the issue have unfortunately required a conservative response — though some might argue there is a difference between voting on legislation and co-sponsoring legislation. Loudermilk made the case he signed onto the bill before the Dobbs ruling was officially released.
To varying degree, these are valid explanations. We also noted that the comments from Arrington, Baird, Mann, and Murphy included phrases that might suggest they were not necessarily ruling out a federal role.
That still leaves 18 representatives who hailed the return of abortion policy to the states — while co-sponsoring a bill that would amount to a nationwide federal ban on abortion that would override state laws.
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[1] Url:
https://www.washingtonpost.com/politics/2022/09/07/these-republicans-cheered-abortion-policy-going-states-they-are-also-sponsoring-federal-ban/
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