Charles Krauthammer Flip-Flops On The Constitutionality Of Federal Abortion Laws


Washington Post columnist and Fox News contributor Charles Krauthammer attacked the Women's Health Protection Act (WHPA), a newly proposed law that would protect the constitutional right to obtain an abortion, by claiming the federal government has no business legislating reproductive health services -- despite the fact he had previously supported a federal law passed by Republicans that banned a rare late-term abortion procedure.

On July 15, the Senate Judiciary Committee held a hearing on WHPA, a proposed bill introduced by Sen. Richard Blumenthal (D-CT) that could help ensure access to reproductive health services for women by preventing states from passing uniquely and possibly unconstitutionally restrictive abortion legislation. Since 2010, state legislatures have aggressively proposed and enacted a wave of anti-abortion laws, known as TRAP laws, under the guise of protecting women's health. In reality, these laws impose significant burdens on abortion providers by unnecessarily requiring doctors to obtain admitting privileges at local hospitals as well as mandating clinics to comply with seemingly arbitrary “safety” rules and building code provisions. The Women's Health Protection Act would bring an end to these constitutionally-suspect laws by prohibiting states from passing anti-abortion legislation that is any more restrictive than laws that regulate comparable outpatient medical procedures.

Fox News was quick to attack the bill, with host Bill O'Reilly wondering if the senators who proposed it were “executioners.” Kelly File host Megyn Kelly was also critical of the legislation, claiming that it would “open the door on late term abortions ... not just to save the mother's life, but to save the mother's health.” Kelly went on to invoke the assassination of Kansas abortion provider Dr. George Tiller after suggesting that women had “abused” the health exception provisions of late-term abortion bans.

On the July 15 edition of Fox's Special Report with Bret Baier, Krauthammer argued that, even if the bill passes, “there is no way it would survive constitutional scrutiny because it is such a violation of federalism. This is not the federal government's purview. It belongs to the states.”

Krauthammer's current take on federalism and congressional regulation of reproductive rights stands in sharp contrast to a Washington Post column of his from January 30, where he suggested Republicans “debunk the 'war on women'” by “focus[ing] on the horror of late-term abortion.” Krauthammer went on to argue that Republicans work towards “outlawing” the practice “state by state and nationally, as was done with partial birth abortion in 2003”:

Although the country is fairly evenly split on the abortion question, the Republicans' inability to make their case in respectful tones has cost them dearly. In 2012, they lost unmarried women by 36 (!) points.

Yet there is a very simple, straightforward strategy for seizing the high ground on abortion in a way that transcends the normal divisions and commands wide popular support: Focus on the horror of late-term abortion -- and get it banned.


This doesn't mean that abortion opponents should give up. But regarding early abortions, the objective should be persuasion -- creating some future majority -- rather than legislative coercion in the absence of a current majority. These are the constraints of a democratic system.

Not so regarding a third- or late-second-trimester abortion. Here we are dealing with a child that could potentially live on its own -- if not killed first. And killing it, for any reason other than to save the mother's life, is an abomination. Outlawing that -- state by state and nationally, as was done with partial birth abortion in 2003 -- should be the focus of any Republican's position on abortion.

The law that Krauthammer holds up as an example of a successful Republican strategy to win over women voters is the federal Partial-Birth Abortion Ban Act of 2003, which was signed into law by then-President George W. Bush, and prohibits states from allowing certain rare late-term abortion procedures even when the health of the mother is at risk. In a 5-4 opinion by the conservative justices, the Supreme Court upheld the constitutionality of the law over Justice Ruth Bader Ginsburg's dissent that accused the majority of ignoring legal precedent to “chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives” by endorsing “ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited.”

But now Krauthammer has had a change of heart. Apparently, abortion legislation “is not the purview of the federal government,” unless congressional Republicans are banning it.