Jurisdiction Stripping

Pro-lifers can succeed by redefining judicial authority

By Christopher L. Oppermann

The debate over the legality of abortion is, without a doubt, one of the most contentious and divisive controversies of contemporary America. Despite the tireless efforts of many conservatives and members of the pro-life movement, little progress has been made in reversing the disastrous effects of Roe v. Wade. Abortion remains legal in all fifty states. Though the Federal Partial Birth Abortion Ban, celebrated as a great victory for the pro-life movement, withstood the scrutiny of the Supreme Court, it does very little in practice to prevent late-term abortions since it only prohibits a very specific procedure. The pro-life movement has mostly succeeded in keeping the federal government from directly subsidizing abortion, but the idea of funding it with federal tax dollars, perhaps as part of the health care reforms being debated in Congress, is by no means off the table.

By and large, the pro-life movement adopts one of two strategies. The first involves appointing Supreme Court Justices willing to overturn Roe and uphold the constitutionality of federal and state laws prohibiting abortion. The second involves amending the Constitution to allow Congress to ban abortion.

There is, however, a third possibility, which would enable the pro-life movement to score dozens of victories all over the country, and at the same time provide a more constitutional and reasonable platform to debate the abortion question. This forgotten alternative is Congress’s power of jurisdiction stripping. According to Sections One and Two of Article III of the Constitution, Congress has the power to regulate and control the jurisdiction of the Supreme Court and inferior federal courts, except with respect to certain cases explicitly mentioned in Section Two. That is, Congress has broad power to determine which cases federal courts may hear.

The pro-life movement could realize its objective, then, if it could remove from federal courts the power to hear cases concerning abortion. The issue would no longer be a federal one, but would instead be decided by the states. Therefore, states willing to further restrict or even ban most abortions would be able to do so without interference from the federal judiciary. This would certainly be an improvement over the status quo, whereby the legality of abortion can be preserved by five unelected judges.

Such a move would hardly be a departure from American history or legal tradition. Jurisdiction stripping was used in the period of Reconstruction with respect to the Supreme Court case Ex Parte McCardle (1869). William McCardle, an ex-Confederate who had been arrested for distributing seditious, anti-Reconstruction materials, appealed to the Supreme Court to grant a petition of habeas corpus. While the case was pending, Congress passed an act explicitly prohibiting the federal judiciary from ruling on cases arising under the Military Reconstruction Act of 1867. The Supreme Court subsequently dismissed the case on the grounds that Congress had suspended its jurisdiction over the matter. A more recent example is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which prohibits the federal judiciary from hearing appeals of certain decisions by the Immigration and Naturalization Service.

This strategy is more politically feasible than fighting for nationally binding judicial or legislative restrictions on abortion, since the resources of the pro-life movement are usually no match for the coffers of Planned Parenthood and other pro-choice groups. Though jurisdiction stripping would encounter opposition, it would be much easier to accomplish—with a simple majority in both houses of Congress and the president’s approval—than would a constitutional amendment or the appointment of a pro-life justice.

Stripping the federal judiciary of jurisdiction over abortion would put the debate firmly where it belongs: at the state level. It is conservatives, after all, who have the least amount of trouble equating abortion to murder. The murder of an innocent child, like the murder of any citizen, is a matter routinely handled by the states. As an added benefit, the pro-life movement would finally be able to shift its focus away from Washington, where its precious few resources have been gobbled up in trying to affect all-or nothing goals, and redirect it toward localized jurisdictions with strongly anti-abortion sympathies. True, there may be many states in which abortion would remain legal and widely available, but pro-life groups would be able to focus their energy, manpower, and scarce funds in the states closest to victory.

The Framers of the Constitution established the principle of federalism for a reason. They sought to implement the timeless truth that the most responsive government is close to the people. By reframing the abortion debate in these terms, advocates of human dignity and liberty can score an important victory for limited government, respect for the Constitution, and the pro-life cause.