Today pro-life activists are marching in Washington to protest and mourn the 39th anniversary of Roe v. Wade. Three pro-life Republican presidents later, Congress and the states have a little bit more power to democratically enact restrictions on abortion, but Roe still stands. That’s why the March for Life remains an annual event.
Pro-lifers have tried two strategies for overturning Roe: constitutional amendments (largely abandoned after the Reagan years) and appointing conservative judges, especially to the Supreme Court. But in the last Republican presidential debate, Ron Paul brought up another: jurisdiction-stripping.
Under Article III, Section 2 of the Constitution, Congress has the power to regulate and make exceptions to the jurisdiction of the federal courts, including the Supreme Court. A Republican Congress could, by simple majority vote, reverse Roe through jurisdiction-stripping. Even assuming many — perhaps most — states would opt to keep abortion broadly legal, the overall effect would be to make the legal code more pro-life than it is currently without necessitating the kind of political transformation that would be required to ratify a human life amendment or waiting for that elusive fifth anti-Roe justice.
Jurisdiction-stripping is controversial by itself. Using it as a tool in dealing with some of the most polarizing political issues of our time would make it doubly so. But would reminding the American people that Congress has this power, and has used it in the not-too-distant past in legislation that has come before the Supreme Court, not potentially build support for this approach? It would seem to be a better use of conservatives’ time than constitutional amendments that won’t ever clear a single chamber of Congress, much less be ratified.