Mike Huckabee And Marco Rubio's Weird Legal Theory About Abortion

A small group of conservatives believe the president or Congress can challenge the Supreme Court’s interpretation of the Constitution.
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Former Arkansas Gov. Mike Huckabee and Sen. Marco Rubio (R-Fla.) found one thing they could agree on during Thursday’s Republican presidential debate: They both believe the Constitution already gives the president the power to outlaw abortion. Their view is a minority one in the legal community that is out of sync with the overwhelming consensus on constitutional interpretation.

Huckabee claimed he could invoke the Fifth and 14th Amendments to stop abortion in the country. Rubio did not specify which parts of the Constitution he would use, but agreed that abortion was already illegal. The Fifth Amendment to the Constitution guarantees American citizens “due process” in criminal trials. The 14th Amendment prohibits the government from “[depriving] any person of life, liberty, or property, without due process of law."

Huckabee and Rubio were identifying with the belief of a small school of conservative legal scholars and activists who oppose the concept of judicial review, which gives the Supreme Court the sole authority to interpret the Constitution. These conservatives believe the president or Congress can challenge the Supreme Court’s interpretation of the Constitution with legislation that ostensibly violates current Supreme Court rulings. This view is attractive to anti-abortion activists, who deeply disagree with the Supreme Court’s current interpretation of the 14th Amendment. (Although Huckabee invoked the Fifth Amendment as well, it is not often accorded the same import by other activists.)

Robert George, a law professor at Princeton, is a proponent of this school of thought. He has written, for example, that he “thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade.”

The vast majority of legal scholars, including many anti-abortion activists, however, acknowledge that the Supreme Court’s 1973 Roe v. Wade ruling protects a woman’s right to abortion. The high court ruled that laws preventing women from getting an abortion violate a woman’s right to privacy under the 14th Amendment. Until the Supreme Court overturns that ruling, they argue, the president cannot act unilaterally to interpret them differently.

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