ArcaMax

What McConnell et al. described as a matter of "preference" and "appetite" is actually mandatory, because the Constitution does not give Congress the authority to regulate abortion. Graham implausibly invoked the 14th Amendment's guarantees of due process and equal protection, which apply to "any person," a category that he said includes fetuses.

Although some abortion opponents have long favored that interpretation, the Supreme Court explicitly rejected it in Roe and so far has declined to revisit the issue. More commonly, members of Congress, including Democrats seeking to protect abortion rights as well as Republicans trying to limit them, have relied on an absurdly broad understanding of the power to regulate interstate commerce that obliterates the constitutional distinction between state and federal authority.

Trump's embrace of abortion federalism makes political as well as constitutional sense. Republicans are dealing with the electoral fallout from Roe's reversal, including shifts in public opinion, rejection of stricter abortion policies by voters in red and purple states, and the surprisingly strong performance of Democrats who oppose those policies.

Given Trump's history of asserting extraconstitutional powers, his abortion stance probably is motivated by partisan concerns rather than federalist principle. But that does not mean he is wrong.

President Joe Biden, meanwhile, favors constitutionally unauthorized legislation that would re-establish a federal right to abortion. On this issue, Trump has improbably managed to claim the high ground.

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Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

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