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Since the 1990s, a dominant military paradigm on the center left has been liberal interventionism: the notion that the United States has the right, even the obligation, to intervene in far-off countries to protect human life and freedom. Liberal interventionism emerged out of a specific constellation of events: the fall of the Soviet Union, the rise of the US as the world’s lone superpower, and the genocides in Rwanda and the Balkans. It paired a morally righteous critique of US foreign policy with post-Cold War optimism about America’s ability to improve the world.

But in subsequent decades, the intellectual scaffolding propping up liberal interventionism took hit after hit.

9/11 was a key inflection point. The attack prompted leading liberal interventionists to marry their doctrines to the Bush administration’s war on terror, becoming some of the most prominent boosters for a disastrous war in Iraq waged by a Republican president. Later, the Obama administration’s experiences in Afghanistan and Libya reinforced lessons about the dangers of intervention.

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President George W. Bush rallies firefighters and rescue workers during a speech at the site of the collapsed World Trade Center on September 14, 2001, soon before the US invaded Afghanistan.

More recently, an expansionist Russia and rising China raised questions about America’s capability to intervene in countries with competing influences. Donald Trump’s 2016 victory and subsequent attempts to overturn the 2020 election revealed urgent threats to liberal democracy — not abroad, but here at home.

As a result, the center of intellectual gravity among liberals has shifted.

“The most remarkable fact about liberals today is that, aside from a few, they’ve all learned their lesson,” says Samuel Moyn, a law professor at Yale University and repentant liberal ex-hawk. “Joe Biden’s choices are kind of inexplicable absent that.”

Liberal interventionism is being supplanted by a loose alternative that could be termed “fortress liberalism”: a belief that saving liberal democracy means defending it where it already exists — and that crusading wars for democracy and human rights are distractions at best and disasters at worst.

This is not to say that America has gotten out of the war business. Biden’s administration requested $753 billion in national security funding from Congress for 2021. The Washington foreign policy consensus is still quite hawkish, entertaining military solutions for problems ranging from ISIS affiliates in Somalia to Russia’s war in Ukraine to Chinese adventurism in the South China Sea.

But new wars waged on behalf of human rights and democracy are not really on the table (at least on the left). Part of the reason the criticism of the Afghan withdrawal has been so harsh is that some liberals are reckoning with the fall of one of their gods — conceding that, for better or worse, the era of liberal interventionism is over.

The rise of liberal interventionism

In the 1990s, a geopolitical shift brought forth a more globally assertive, interventionist liberalism.

The collapse of the Soviet Union left the United States without any serious rivals. During the Cold War, America had built a military capable of intervening relatively swiftly around the world. Absent any peer or even near-peer threat, the United States was free to engage in wars of choice with a reach unmatched by any previous global power.

Now the United States stood as the world’s first liberal hegemon. The US victory in the Cold War was seen not merely as a matter of power politics, but as a vindication of liberal democracy as a political model.

“We were on a euphoric high having won the Cold War,” says Rep. Ro Khanna (D-CA). The country “had really bought into this narrative of the march of the liberal democracy and that America’s force could really facilitate that.”

This zeitgeist, America’s “unipolar moment” at “the end of history,” created the conditions under which the United States could become a nation that could project its moral ideals — by force if need be.

Two events pushed the American liberal elite toward embracing this vision: genocides in Rwanda in 1994 and Bosnia in 1995.

In Rwanda, a campaign of murder by the Hutu majority against the Tutsi minority killed an estimated 800,000 people in just 100 days. At the time, United Nations peacekeepers were on the ground in Rwanda but prohibited from intervening by their UN mandate. Romeo Dallaire, the Canadian general in charge of the UN force, pleaded with UN officials to let him do something — and they refused. The Clinton administration was also warned of an impending mass slaughter; the White House not only did nothing but worked to block UN action.

Susan Rice, who would later become one of President Barack Obama’s national security advisers, was at the time a Clinton official working on peacekeeping issues. The experience, for her, was shattering. “I swore to myself that if I ever faced such a crisis again, I would come down on the side of dramatic action, going down in flames if that was required,” Rice told liberal interventionist Samantha Power in a 2001 interview.

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  <figcaption>In 2013, President Obama walks with Ambassador to the United Nations Susan Rice (center right), UN 
ambassador-nominee Samantha Power (far right), and National Security Adviser Tom Donilon. Rice and Power argued for an interventionist approach during the Obama administration.
 Yasuyoshi Chiba/AFP via Getty Images
People prepare coffins containing newly discovered remains of 84,437 victims of the 1994 genocide in Rwanda, on May 4, 2019.

A little over a year after Rwanda, a different UN force in Bosnia declared the town of Srebrenica a “safe zone”: a place where civilians fleeing the fighting consuming the Balkans could stay under international protection. Neither the peacekeepers nor prior NATO intervention in the conflict deterred Serbian forces from seizing control of the town. They systematically murdered Bosnian Muslims residents of Srebrenica, killing thousands in a matter of mere days.

Power, who would go on to serve with Rice in the Obama administration as UN ambassador, reported from the ground during the Bosnian conflict — witnessing slaughter that, she argued, could plausibly have been prevented with a more assertive NATO response.

In her 2002 book A Problem From Hell, Power asserts that Rwanda and Srebrenica were part of a pattern; America’s problem historically has not been its capacity to stop genocide, but its will. “No US president has ever made genocide prevention a priority, and no US president has ever suffered politically for his indifference to its occurrence,” she wrote. “It is thus no coincidence that genocide rages on.”

This was the essence of post-Cold War liberal interventionism: the notion that an absent America was a complicit America.

It was a vision of a superpower embracing its moral calling, protecting human rights wherever they needed defense, and it was a doctrine that became influential among liberal intellectuals and pundits after Rwanda and Bosnia. Among its most prominent advocates were the editors of the New Republic, the closest thing to a house organ for American liberalism at the time.

Near the end of Clinton’s presidency, these thinkers’ ideas received real-world vindication.

 Stan Honda/AFP via Getty Images
Secretary of State Madeleine Albright meets with United Nations Secretary-General Kofi Annan at his residence in New York, on the eve of a meeting at the UN to discuss Kosovo, in June 1999.

In 1998, war once again broke out in the Balkans, this time in Kosovo. Once again, ethnic Serbian forces singled out a civilian group — Kosovar Albanian Muslims — for slaughter. But this time, the Clinton administration chose to act, leading a NATO bombing campaign that began in March 1999. By June, Yugoslav President Slobodan Milosevic (who led the Serbian side) had been battered into accepting an international peace agreement. Kosovo would become an independent state; in 2000, the authoritarian Milosevic was toppled in a popular uprising and stood trial for war crimes in the Hague in 2002.

Moyn, the Yale professor, worked on Kosovo policy during the war in a junior White House position. He believed they were doing the right thing — but would come to change his mind in a few short years.

“The thing we really missed is that, when you argue for illegal interventions for humanity’s sake, you’re allowing pretexts for future actors,” he says. “We didn’t reckon with the enormous risk at the time — and it was incurred soon after.”

9/11, Iraq, and the decline of the liberal hawks

In 2001, the world pulled the rug out from under liberals interventionists’ feet. The 9/11 attacks, and the George W. Bush administration’s aggressive response, turned American attention away from genocide and toward terrorism — a move that would lead liberal interventionists in a disastrous direction.

Bush’s wars in Afghanistan and Iraq were not textbook liberal interventions. Both were primarily justified on traditional security grounds, first and foremost combating the threat from terrorism and weapons of mass destruction. They were masterminded and implemented not by liberals but by neoconservatives and right-wing hawks.

Yet to build support for the war, the administration invoked liberal concerns, like the Taliban’s abuse of women and Saddam’s gassing of Iraq’s Kurds in the city of Halabja. And it worked. Leading liberal interventionists in the Democratic Party, academia, the media, and Washington think tanks bought in — casting war on terror hawkery not as a break with the interventionism of the 1990s but as its logical extension.

 Martin Simon/Getty Images
President George W. Bush meets with Vice President Dick Cheney and former and current members of his Cabinet in May 2006. Violence in Iraq reached new heights that year, as the administration considered a troop surge.

 Mark Wilson/Getty Images

Former Secretary of State Hillary Clinton (center), Secretary of State John Kerry, and former first lady Laura Bush stand together at an event to honor the women of Afghanistan at Georgetown University on November 15, 2013. A bipartisan consensus in Washington on US military intervention has since fallen away.

“Thanks to the courage and bravery of America’s military and our allies, hope is being restored to many women and families in much of Afghanistan. … [Women’s rights] are universal values which we have a responsibility to promote throughout the world, and especially in a place like Afghanistan,” then-Sen. Hillary Clinton wrote in a 2001 op-ed in Time.

“Morally, there is no significant difference between Halabja and Srebrenica,” New Republic literary editor Leon Wieseltier wrote in March 2003, on the eve of the US invasion of Iraq. “Unlike the villain of Srebrenica, the villain of Halabja is in the position to perpetrate the same atrocity again, and worse. How can any liberal, any individual who associates himself with the party of humanity, not count himself in this coalition of the willing?”

But it wasn’t just that they passively accepted Bush’s claims: It’s that they developed their own elaborate arguments for Iraq and the war on terrorism, couched in fully liberal terms.

Books by leading liberal hawks, like scholar Paul Berman’s Terror and Liberalism and New Republic editor Peter Beinart’s A Fighting Faith, argued that radical Islam was a civilizational challenge to liberalism — the next great battle after fascism and communism. The messianic liberal energies once focused on genocide prevention became redirected toward defeating jihadism and spreading democracy in the Muslim world.

“America’s destiny is literally at stake,” then-Sen. Joe Biden said in a speech at the 2004 Democratic National Convention. “The overwhelming obligation of the next president is clear: Make America stronger, make America safer, and win the death- struggle between freedom and radical fundamentalism.”

But the war in Iraq swiftly proved disastrous. Hundreds of thousands died as a result of the US invasion, which uncovered no weapons of mass destruction. Instead of stabilizing the region and promoting democracy, it gave birth to ISIS and a fragile Iraqi state few wanted to emulate. During the conflict, American troops committed atrocities — including mass murder and torture — that undermined US claims to moral superiority. Meanwhile, Bush neglected the occupation of Afghanistan; Osama bin Laden escaped and the Taliban reconstituted itself, evolving into an effective and deadly insurgency by the time Bush left office.

 Roberto Schimdt/AFP via Getty Images
Two US soldiers guard an Iraqi detainee during an overnight raid in Tal Maghar, Iraq, in November 2003. Reports of abuses by US soldiers against Iraqis undermined claims of American moral superiority.
 Romeo Gacad/AFP via Getty Images
Afghan villagers and US troops inspect a former Russian bunker in Kandahar, Afghanistan, in 2011, as fighting continued a decade into the war.

Ben Rhodes, who would become one of Obama’s leading foreign policy advisers, began his career in in the midst of the early-2000s war fervor — a “24-year-old pissed off about 9/11,” as he puts it. Like most Democrats, he bought into the notion that the war on terrorism would be a “generational endeavor” — only to have his faith shattered when Bush, backed by the bulk of the national security establishment, used this premise as a justification for the invasion of Iraq.

“I never got over that,” Rhodes tells me. “It was a warning sign to me that you could put an intellectual framework around anything, even something as manifestly dumb as invading a country that had nothing to do with 9/11 and then occupying it.”

The catastrophe in Iraq and the long quagmire in Afghanistan undermined two fundamental liberal interventionist premises. First, that America could be trusted to attack the right targets — that liberal ideals would not be abused to justify unjust wars. Second, that defeating murderous tyrants would produce better humanitarian outcomes.

These twin lessons played a pivotal role in the decline of liberal interventionism. Barack Obama won the 2008 Democratic primary in no small part because he had opposed the Iraq War from the outset — while Hillary Clinton, infamously, had supported it. It was a sign of the hawkish tide’s waning, of the rise of a more cautious spirit on the center left.

But liberal interventionism wasn’t quite extinguished yet. As president, Obama surged troops into Afghanistan in an effort to defeat the rising Taliban insurgency. When faced with a potential mass slaughter in the Libyan city of Benghazi in 2011, he chose to launch a Kosovo-style intervention — multilateral, primarily airpower, no large-scale postwar American occupation.

The US and its allies not only stopped the conquest of Benghazi but also toppled Libyan dictator Muammar Qaddafi — arguably exceeding their UN mandate in doing so. And there was no subsequent quagmire as in Iraq and Afghanistan.

 Roberto Schmidt/AFP via Getty Images
A resident of Benghazi stands atop a burning heap of books authored by Libyan leader Muammar Qaddafi on March 2, 2011. The Obama administration decided to intervene in the Libyan civil war amid the Arab Spring, citing the threat of civilian casualties.

But the war was hardly an unmitigated success. Shortly after Qaddafi’s fall, Libya degenerated into violence and civil conflict. It became an anarchic and violent place, a weakly governed space exploited by jihadist militants — one that remains unstable today.

It’s possible — likely, in my view — that Libya would have been even worse off absent US intervention. But for Obama and many liberals, the war was proof that even a “light footprint” intervention typically isn’t worth the costs. Rhodes recalls a conversation with Obama about intervening in Syria’s civil war that crystallized where liberalism had moved to by the mid-2010s:

After Libya, I remember sitting in the Situation Room saying, “We have to consider doing more [in Syria].” And Obama was in the meeting and he was like, “What do we do, Ben?” with some exasperation … he was very easily leading me to the logical conclusion that any limited intervention would either accomplish nothing or lead to a much more significant intervention, for which there was absolutely no political support and was likely to fail in the same way that Iraq, Afghanistan, and Libya did.

When it comes to liberal interventionism in the Obama years, Rhodes believes that “Libya ended all of it.” The refusal to intervene in Syria, followed by Biden’s Afghanistan withdrawal, were more steps down the same path — toward a new posture among liberals.

China, Trump, and the emergence of “fortress liberalism”

After the catastrophes in the Middle East, the most prominent liberal interventionists went in different directions.

Power and Rice are both serving in the Biden administration, but neither works on military or defense policy: Power is the head of USAID while Rice runs Biden’s Domestic Policy Council.

Other hawks are once again warning of alleged existential threats to liberalism, albeit from a different corner: Wieseltier and Berman have both evolved into critics of “cancel culture” and the alleged excesses of the left. Still others, like Beinart and Moyn, have spent years grappling with what they now see as the terrible mistakes of the 1990s and 2000s, becoming influential skeptics in debates over the US use of force.

But on the whole, what was once a vital intellectual and political movement has dissolved. No one event illustrates this more clearly than Biden, who voted for the Iraq War, supervising America’s withdrawal from Afghanistan.

 Saul Loeb/AFP via Getty Images
President Biden attends the dignified transfer of the remains of fallen service members at Dover Air Force Base in Dover, Delaware, on August 29. Thirteen members of the US military were recently killed in Afghanistan.

Some liberal interventionists, like the Atlantic’s George Packer, attacked the Biden withdrawal, as did many “straight news” reporters and Washington think tank denizens. But most of these objections focused on either the withdrawal’s execution, like a failure to evacuate Afghan allies quickly enough, or national security concerns (like the terrorist threat posed by a Taliban-controlled Afghanistan).

The liberal move away from interventionism is not solely the result of America’s Middle Eastern misadventures. It is also a reaction to deeper transformations in global politics.

First, the United States is no longer unrivaled in the way it was when the Berlin Wall fell. Russia’s invasion of Ukraine, intervention in Syria, and meddling in the 2016 election refocused American attention on its old enemy. Even more important, the rise of China suggested that America might actually face a peer competitor in the future — a rising power that, unlike Russia, might be able to overtake America in global influence.

Russian and Chinese assertiveness has led official Washington to refocus on “great power competition”: a foreign policy primarily concerned with US relations with large rivals rather than the internal affairs of smaller, strategically marginal states. In this paradigm, some liberals began to see wars for human rights as a costly distraction — aligning with realists in a renewed emphasis on traditional power politics.

“I don’t actually think that the failures of foreign policy in the Middle East alone were enough to catalyze this shift” against interventionism, says Emma Ashford, a senior fellow at the Atlantic Council think tank. “I think it’s the rise of China, and more broadly the fact that America is in relative decline … that is where we start hearing some talk of constraints.”

Biden invoked this concern, quite explicitly, in his speech justifying the Afghanistan withdrawal: “Our true strategic competitors — China and Russia — would love nothing more than the United States to continue to funnel billions of dollars in resources and attention into stabilizing Afghanistan indefinitely.”

But it’s not just Russia and China that have doomed liberal interventionism. American liberals now face a threat closer to home: Donald Trump, an increasingly authoritarian Republican Party, and the rise of illiberal populism inside democratic states.

The shock of far-right populism did not just undermine the sense of destiny that motivated liberal global ambitions in the 1990s. It also made liberals acutely aware that the great ideological battle of today would not be waged abroad but at home. Liberalism, on the offensive since the Cold War, has been backfooted by far-right populism.

“How can a country that has January 6 fix Afghanistan?” Rhodes asks, referring to the insurrection at the US Capitol.

 Samuel Corum/Getty Images

Trump supporters storm the US Capitol in the January 6, 2021, insurrection. Threats to democracy at home have brought skepticism of US intervention abroad.

It’s a question that captures the shifting mood among liberals — and the rise of fortress liberalism. Twenty years after 9/11, liberals are deprioritizing the spread of liberal values in favor of protecting them where they are already in place.

“Rather than wasting its still considerable power on quixotic bids to restore the liberal order or remake the world in its own image, the United States should focus on what it can realistically achieve,” Mira Rapp-Hooper and Rebecca Lissner, both current Biden NSC staffers, wrote in a 2019 Foreign Affairs essay.

Fortress liberalism is not a clean break from what came before it. Biden, for example, has been quite clear on his willingness to use force against terrorists around the world.

While the door may still be open to future liberal interventions, it is clear that liberal interventionism as a doctrine — that American military policy should be oriented around stopping genocide and spreading liberal values — has been supplanted.

But for all its errors — and they were myriad and massive — liberal interventionism did contain a core insight worth preserving: that a life is no less valuable because it is lived outside America’s borders.

The greatest sins of American foreign policy have not been the result of an excess of concern for foreign life but a lack of it. From the genocide of Indigenous peoples to the transatlantic slave trade to imperialism in Latin America to Cold War-era support for mass murders and torturers, America has a long and horrifying track record of sacrificing people on the altar of its own economic and strategic interests.

 Bilal Guler/Anadolu Agency via Getty Images
Members of the Taliban pose for a photo after taking over Panjshir Valley, the only Afghanistan province the group had not seized the previous month, on September 6.

Liberal interventionists were right to recoil from this past and seek something better. But they were too quick to conclude that the solution was moralized militarism — to see the use of American might against manifestly bad actors as righteous rather than dangerous.

Preserving the moral outlook of ’90s liberal interventionism while abandoning its militarism means discharging our moral duties to non-Americans through nonviolent means: leading the world in the fight against climate change, opening America’s doors to many more refugees, and sending humanitarian aid to the world’s impoverished.

It also means recognizing the toll that any war, however just-seeming, has on civilians — and, as a result, opposing the use of force as anything but a last resort under truly desperate circumstances.

Liberal interventionism barely had a pulse these past few years; Biden’s withdrawal is less its formal end than a long, drawn-out coda. Today’s liberals do seem to have internalized at least one key lesson from its failures: concluding, as John Quincy Adams put it, that America should not survey the world “in search of monsters to destroy.”

But they should also remember the second half of Adams’s formulation: that the United States must also proclaim “the inextinguishable rights of human nature and the only lawful foundations of government,” that “wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be.”

House Speaker Nancy Pelosi walks down a corridor toward the camera. Ting Shen/Bloomberg via Getty Images
In a statement issued to the press on September 2, Nancy Pelosi said: “The Supreme Court’s cowardly, dark-of-night decision to uphold a flagrantly unconstitutional assault on women’s rights and health is staggering.”

Reproductive rights activists say it’s a well-thought-out bill that not only expands federal protections but also anticipates potential challenges from conservative state governments. It has widespread, but probably not universal, support among elected Democrats. All of the major Democratic presidential candidates, including President Joe Biden, endorsed legislation “codifying Roe” during the last election cycle. The WHPA has 205 co-sponsors in the House and 47 in the Senate.

Realistically, however, the bill faces a difficult uphill climb before it could become law. Even if it passes the House, it’s unclear whether the WHPA has majority support in the Senate. Neither Sen. Bob Casey (D-PA), who has voted for abortion restrictions in the past, nor conservative Democratic gadfly Sen. Joe Manchin (D-WV) cosponsor the legislation.

If Casey and Manchin oppose the bill, Democrats will need to pick up support for it from nominally pro-abortion Republicans such as Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK). And that’s assuming Democrats have the votes to reform the filibuster, which allows the Republican minority to block most legislation that is not supported by at least 60 senators. A small group of Democratic senators, including Manchin, oppose such a reform.

And even if WHPA does become law, there’s a serious risk that the Supreme Court could strike it down. Although current Supreme Court precedents permit Congress to protect abortion rights, the entire purpose of the WHPA is to preserve those rights if the Supreme Court decides to overrule major decisions like Roe and Casey.

So there’s no guarantee that this Supreme Court wouldn’t also overrule its previous decisions laying out the scope of Congress’s power to regulate abortion care and health care more broadly.

The bottom line, in other words, is that Democrats do have a plan to restore abortion rights in the very likely event that the Court takes them away. But their plan is unlikely to go anywhere unless Democrats gain seats in the 2022 congressional midterms. And even if that does happen, the WHPA will still have to survive contact with the very same Supreme Court that has already started to gut Roe.

So what does the Women’s Health Protection Act do?

Although Democrats often describe the WHPA as a plan to “codify Roe,” the bill would not literally write the Court’s decision in Roe v. Wade into federal law. The Court’s 1973 decision in Roe divided pregnancy into trimesters, with states gaining more power to regulate abortion as pregnancies advance into later trimesters. WHPA, by contrast, primarily seeks to protect the abortion right “prior to fetal viability” — the moment when “there is a reasonable likelihood of sustained fetal survival outside the uterus with or without artificial support.”

Under the WHPA, states could not enact “a prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.” It also prohibits post-viability restrictions on abortion “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Additionally, the bill includes several provisions preventing states from enacting specific restrictions on abortion that anti-abortion lawmakers have pushed in the past.

In Whole Woman’s Health v. Hellerstedt (2016), for example, the Supreme Court struck down a Texas law that required abortion providers to maintain a difficult- to-obtain credential, while also imposing expensive architectural requirements on abortion clinics. The Court found that these restrictions imposed unnecessary burdens on abortion patients, while doing little or nothing to make abortions safer.

A person wearing a breathing mask with the words “no forced 
motherhood” written on it. Michael M. Santiago/Getty Images
Planned Parenthood of New York City and NOW-NYC organized a rally for reproductive rights on September 1 in New York City.

The WHPA would prohibit similar restrictions on abortion facilities and providers, unless the same restrictions are also imposed “on facilities or the personnel of facilities where medically comparable procedures are performed.” Thus, states would retain the power to regulate health care generally — and to subject abortion providers to the same licensure and other requirements imposed on all health providers — but not to impose discriminatory restrictions on abortion care.

Another provision of the WHPA prevents states from requiring abortion patients to undergo unnecessary medical tests. The bill protects abortion providers’ ability to provide certain services via telemedicine. And it bans state laws mandating that patients must disclose why they wish to have a pre-viability abortion.

Thus, if the WHPA is enacted — and if it is ultimately upheld by the Supreme Court — the bill would not simply enshrine a right to an abortion into the United States Code. It would also preempt a raft of state laws seeking to drive up the cost of abortions, to make abortions less safe or more difficult for patients, and to prevent abortion clinics from operating.

But is the WHPA constitutional?

Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.

Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.

One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.

But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.

Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.

As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.

Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states you get the idea.

Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.

But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.

If the Supreme Court strikes down the WHPA, that would have profound implications for American health care

If the Supreme Court held that Congress may not regulate abortion, that decision could have a sweeping impact on American law.

For one thing, such a decision would strip abortion providers and their patients of rights they currently enjoy under federal law. The Freedom of Access to Clinic Entrances Act (FACE) makes it a crime to use force, the threat of force, or “physical obstruction” to block access to an abortion clinic. If Congress loses its ability to regulate abortion, FACE could no longer be enforced — which could mean blockades in front of abortion clinics even in states where abortion is legal.

More broadly, a Supreme Court decision invalidating a law like the WHPA could endanger all federal regulation of health providers.

Two people dressed in costumes reminiscent of “The Handmaid’s Tale” confront a person
 carrying a “Confirm Amy” sign. Olivier Douliery/AFP via Getty Images
Pro-abortion demonstrators talk with a supporter of Judge Amy Coney Barrett outside the US Supreme Court on October 26, 2020.

Recall that the constitutional argument for the WHPA rests on the impact abortion has on interstate commerce. Abortion is performed by doctors trained in many states, using equipment that travels in interstate commerce, and so forth. But the exact same argument could be made about any medical procedure. If Congress can’t regulate abortion, it can’t regulate pap smears, colonoscopies, and open-heart surgeries either. It also may not be able to regulate the insurers who pay for such services. Laws like Obamacare, with its web of regulations governing health insurance and protecting people with preexisting conditions, could potentially be in trouble.

A decision striking down the WHPA, in other words, would most likely strip Congress of its power to regulate much of the health care system.

Many of the WHPA’s supporters acknowledge the intimate constitutional ties between the federal government’s ability to regulate abortion and its ability to regulate the practice of medicine generally — indeed they are counting on it.

After Biden and other Democratic candidates endorsed the WHPA, I asked Susan Inman — then a lawyer with the Center for Reproductive Rights and now a Justice Department attorney — whether the Court might strike down a law like the WHPA. She told me the justices “would have to do somersaults and backflips” to strike down a law protecting abortion without also dismantling much of Congress’s ability to regulate health care. And she warned that a decision stripping away too much of Congress’s ability to regulate health care would “topple the whole system.”

She’s right. If Congress’s power to regulate interstate commerce does not extend to a law regulating abortion care, it’s hard to see how it would extend to any other form of health care. FACE, much of the Affordable Care Act, and other federal laws regulating health care could fall along with the WHPA.

The question facing congressional Democrats, in other words, is whether they want to tempt the wrath of a Supreme Court that is extraordinarily hostile to abortion rights in order to write those rights into federal law.

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