Abortion, “Preclearance,” and Court-Packing in Fourth Democratic Debate
Abortion became a major focus for the first time on the Democratic presidential primary debate stage, when Senator Kamala Harris highlighted her plan for cracking down on states that unconstitutionally restrict abortion last Tuesday.
The California senator once again said that, if elected, she would implement “preclearance”—requiring states with a history of restrictive abortion laws to clear any new regulations with the Justice Department before they can go into effect. Her fellow candidates then chimed in with their views on reproductive rights, Roe v. Wade, and the Hyde Amendment, with some even addressing the question of whether they would pack the Supreme Court to protect abortion rights in an extensive discussion of this hot-button issue during the fourth debate in Westerville, Ohio.
Stressing the need to uphold constitutional protections for abortion, Harris detailed her “preclearance” plan Tuesday night. “For any state that passes a law that violates the Constitution, and in particular Roe v. Wade, our Department of Justice will review that law to determine if it is compliant with Roe v. Wade and the Constitution,” the Senator said. “And if it is not, that law will not go into effect. That's called pre-clearance.”
Taking a shot at lawmakers in states such as Alabama, Missouri, and Ohio who passed restrictive abortion laws earlier this year, Senator Harris continued, “Because the reality is that while we still have – as I said earlier – these state legislators who are outdated and out of touch, mostly men who are telling women what to do with their bodies, [and] there needs to be accountability and consequence.”
The senator’s plan for ensuring “accountability and consequence” through preclearance, according to her website, would start by identifying states and localities with “a pattern of violating Roe v. Wade in the preceding 25 years.” Evidence of such a pattern would include court rulings striking down laws passed by those localities; one example Harris points to is Iowa’s “fetal heartbeat” law, which would have banned nearly all abortions after a fetal heartbeat is detected and was deemed unconstitutional in an Iowa county district court ruling earlier this year. Jurisdictions subject to preclearance would be prohibited from enforcing new abortion laws until they proved that the laws comported with the standards laid out in Roe, Whole Woman’s Health v. Hellerstedt (2016), and the Women’s Health Protection Act – a Senate bill cosponsored by Harris that aims to reduce burdens on access to reproductive health services.
This preclearance plan might seem familiar because it was modeled after a key provision of the Voting Rights Act of 1965 (or VRA). Section 5 of the Voting Rights Act required jurisdictions with a history of racial discrimination in voting to obtain preclearance for any proposed changes to their voting laws from the Justice Department or the U.S. District Court for the District of Columbia. The jurisdictions had to prove proposed changes would not abridge the right to vote for individuals because they belong to racial or language minority groups, before they could go into effect. The formula for determining which jurisdictions would be subject to preclearance was laid out by Section 4 of the VRA; criteria included the use of literacy tests in a jurisdiction circa 1964 as well as low voter registration and participation in the 1964 presidential election. Under that formula, Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, and certain political subdivisions in Arizona, Hawaii, Idaho, and North Carolina were subject to preclearance.
However, Section 4 was struck down by the Supreme Court in 2013. In Shelby County v. Holder, a 5-4 decision, the Court ruled that Section 4 was a violation of the states’ power to regulate their own elections. Chief Justice John Roberts wrote for the majority, emphasizing the time that had elapsed since Section 4’s formula was created. “Nearly 50 years later, things have changed dramatically,” the Chief ruled.
He wrote that, since the passage of the VRA, the jurisdictions subject to Section 5 had achieved near racial parity in voter turnout and registration and had nearly eradicated blatantly racist voting practices and discriminatory tools like literacy tests.
Senator Harris seems to have taken note of the Chief’s temporal concerns regarding preclearance formulas, according to Elie Mystal, writing for Above the Law.
“Harris purports to get around this [Shelby County] ruling by tying her pre-clearance regime to “current” conditions where states have suppressed abortion access,” Mystal writes. Mystal also notes that Harris may have devised a clever plan to skirt any Republican adversaries she might face: enacting this plan via executive order.
“Harris’s plans . . . have been more carefully tailored to what a President may be able to do by executive fiat. I don’t know that pre-clearance by executive order actually works as a Constitutional matter, but that’s the thought here. She’s entertaining the possibility of cutting McConnell and the Republicans out of the loop entirely and letting the courts decide if she has the authority.”
Harris, however, does label the plan “Reproductive Rights Act” on her website, suggesting that she may actually intend to enact the plan via an act of Congress.
The senator will likely continue to express the sentiment she conveyed Tuesday night: that pre-clearance for abortion laws is necessary because no person should have “the right to tell a woman what to do with [her] body. It is her body. It is her right. It is her decision.”
Some of Harris’ fellow candidates expressed similar sentiments. Senators Amy Klobuchar and Cory Booker, Representative Tulsi Gabbard, Vice President Joe Biden, and Secretary Julian Castro all said that they would take steps to “codify” Roe upon entering office. (Gabbard added the caveat that she believes abortion should be “rare” and is against third trimester abortions.) Klobuchar also expressed the desire to “fund [Planned Parenthood] again,” while Booker and Castro both said they would repeal the Hyde Amendment, which bars the use of federal funding for abortion. Senator Elizabeth Warren added that she would like to “do it through democracy” and shore up Roe via an act of Congress.
Booker also added another interesting proposal to the mix: creating the White House “Office of Reproductive Freedom and Reproductive Rights.” Booker issued a statement announcing this plan back in May. While he has not provided specifics about how he would create the office, he says it would be “charged with coordinating and affirmatively advancing abortion rights and access to reproductive health care across my Administration — addressing all barriers to full reproductive autonomy, such as access to health care, including maternal and infant health, quality, affordable child care, and comprehensive paid family leave.”
Moderator Erin Burnett of CNN used the topic of reproductive rights to segue into a question about court-packing, asking Vice President Joe Biden if he would pack the court to protect Roe v. Wade. “I would not get into court packing,” Biden replied. “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
Mayor Pete Buttigieg, however, once again emphasized his willingness to consider court-packing. This time, he specifically called out a Yale Law Journal article by Daniel Epps of Washington University in St. Louis School of Law and Ganesh Sitaraman of Vanderbilt Law School. In “How to Save the Supreme Court,” Sitaraman and Epps propose expanding the Supreme Court to 15 justices. First, five justices would be chosen by Democrats and five by Republicans. Those 10 justices would then appoint five more from the courts of appeals, by supermajority vote, to sit on the Supreme Court for one-year terms.
Between Buttigieg reiterating his proposal to reform the Court and Harris highlighting her plan for abortion law preclearance—the fourth Democratic presidential primary debate offered the most in-depth discussion of these controversial topics on the debate stage yet. We’ll see if the conversation continues in the next debate in Atlanta, Georgia, on November 20th.
Jackie McDermott is Constitutional Content Coordinator at the National Constitution Center.