Earlier today, the National Review’s mailing list distributed an email (which can also be found here) signed by Sen. Rand Paul (R-KY), which called for Congress to pass a law effectively rendering a binding Supreme Court decision a nullity:
Working from what the Supreme Court ruled in Roe v. Wade, pro-life lawmakers can pass a Life at Conception Act and end abortion using the Constitution instead of amending it. . . . Signing the Life at Conception Act petition will help break through the opposition clinging to abortion-on-demand and get a vote on this life-saving bill to overturn Roe v. Wade.
A Life at Conception Act declares unborn children “persons” as defined by the 14th Amendment to the Constitution, entitled to legal protection.
It’s not entirely clear why Paul believes Congress has this power, and the email he signed does not provide a fully developed legal argument making the case for such an law. Instead, it appears to argue that Congress can simply grant full legal “personhood” status to fetuses under the 14th Amendment because Roe left open “the difficult question of when life begins.” This is not a correct reading of the Roe decision, however. The Roe opinion is unambiguous that “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.”
Whether one agrees with this opinion or not, Congress does not have the power to flout the Supreme Court’s constitutional decisions simply because it does not like them. As ThinkProgress explained when a similar proposal was floated last year by Princeton Professor Robert George, “[i]n City of Boerne v. Flores, the Court held that Congress is not allowed to simply declare that the 14th Amendment means whatever they want it to mean and then use that declaration to pass enforcement legislation — Congress can only pass laws enforcing existing 14th Amendment rights.”
Just as importantly, there is something very bizarre about a conservative stalwart like Rand Paul insisting that obeying the Supreme Court is optional at exactly the same time conservatives are trying to impose much of their policy agenda upon the nation by judicial decree. Presumably, Paul would be outraged if President Obama simply refused to obey a Supreme Court decision striking down part of the Affordable Care Act or if elections officials were to ban corporations from trying to buy elections despite the justices’ decision in Citizens United. Yet, if Roe v. Wade is as optional as Paul appears to think that it is, than there is no reason why Obama should feel obliged to obey conservatives’ pet decisions either.