The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Waiving the Filibuster to Pass a National Abortion Bill Is a Bad Idea
Democrats will live to regret doing this if they have the votes to do it.
Vice President Kamala Harris has called for eliminating the filibuster to pass a national bill codifying abortion rights. Other top Democrats have called for abolishing the filibuster to pass a Supreme Court packing bill or voting rights legislation. Suspending the filibuster for your highest policy priorities, like guaranteeing abortion rights nationwide, is a very bad idea for four reasons.
First, if Kamala Harris and the Democrats abolish the filibuster on an issue as big as abortion rights for women, or to pack the Supreme Court, the Republicans will abolish the filibuster when they are next in power to ban public sector unions nationwide, to require school choice nationwide, to require tort reform nationwide, and to repack the Supreme Court. Democrats eliminated the filibuster of executive and judicial officers on the lower federal courts in 2013. As a direct result, when Republicans came to power and had a Senate majority in 2017, they eliminated the filibuster on Supreme Court nominees. This allowed the confirmations of Neil Gorsuch, by a vote of 54 to 45, of Brett Kavanaugh by a vote of 50 to 48, and of Amy Coney Barrett in October of a presidential election year by a vote of 52 to 48. What goes around comes around. Kamala Harris and the Democratic Party will rue the day they eliminated the filibuster to pass national abortion rights legislation or a Supreme Court packing bill.
This leads me to my second point, which is this: the one thing that we know for sure about the upcoming election on November 5th is that the presidential race and the races for control of both Houses of Congress are going to be incredibly close. If Democrats elect Harris by a small margin and win control of the two Houses of Congress by a small margin, they will not have a mandate to make a sweeping constitutional change in our system of government. Suspending the filibuster in the Senate would be a sweeping and probably permanent constitutional change in our system of government.
How would Democrats feel if a slim Republican majority in Congress and a Republican President elected by a slim margin required that voters in every state produce a driver's license or a passport in order to be eligible to vote in an election, or if a slim Republican trifecta banned mail in voting in every state because the secret ballot is compromised when people vote outside of polling booths, which it surely is?
To understand why keeping the filibuster is so important, consider my third point, which is this: One of the most important ways in which our Constitution and its system of checks and balances, which has traditionally included the filibuster, protects liberty and promotes economic growth is by creating certainty and predictability, which reduces the risk factor for investors. Few will want to start a business or try to invent a better mousetrap to make money in a country whose legal system might allow for the confiscation of that business or mousetrap income twenty years from now. Many authors will not write a controversial book or article or op-ed or give a speech if their country's legal system might allow them to be prosecuted for what they say twenty years from new.
The reason the United States has the highest GDP per capita of any of the G-20 nations is because our constitutional system of checks and balances, which has always included the filibuster in the Senate, makes investing in, and writing in, the United States very safe because the law is very certain and very predictable. (That's my view based on a good deal of study of comparative G-20 constitutional law.) In the United Kingdom's parliamentary system, which gives total power to the majority party in the House of Commons, the Conservative Party won a majority of 365 seats out of a total of 650 seats, which it used to accomplish Brexit from the European Union—a constitutional kind of change that would certainly have been filibustered in the U.S. Senate if such a question arose. Five years later, in 2024, the left-wing Labour Party won total power with a landslide majority of 411 seats. The U.K.'s constitutional system bubbles with uncertainty and unpredictability compared to the U.S.'s constitutional system of checks and balances, one of which is the Senate filibuster.
The net result is that the United States, in 2023, had a GDP per capita that is $73,637 according to the World Bank—the highest of the G-20 nations. The United Kingdom, in 2023, however, had a GDP per capita of only $54,126 because its constitutional system is so unpredictable and uncertain in the outcomes it generates. The average American generates $19,511 more wealth per year than does the average citizen of the U.K. This is because the risk factor for investment in the U.S. is so much lower than it is in the U.K.
China may have the second largest economy in the world because it has 1.4 billion people, but its GDP per capita in 2023 was only $22,135, which ranks it only 15th among the G-20 nations. This is because Chinese communism and dictatorship make life very uncertain and very unpredictable.
Fourth, the idea of a national rule on abortion is a bad idea because the United States is the third most populous nation, and the fourth largest, territorially, in the world. Moral opinions on abortion differ greatly from state to state. In Tim Walz's Minnesota, abortion is available through the ninth month of pregnancy—a law which many find to be appalling. In Texas, abortion is totally illegal with limited exceptions, which many also find appalling. The federal government of our vast, continental democracy should focus on national defense and the protection of free trade in interstate commerce. Health and morals matters should be left to the states, except for the protection of civil rights protected by the Equal Protection Clause of the Fourteenth Amendment and for the application of the Bill of Rights to the States through the Fourteenth Amendment.
Sadly, I predict that most states will legalize overly broad abortion rights by referenda including in the ten referenda on abortion, which will be held on November 5th of this year. Such referenda have passed even in very red states like Kansas and Ohio and such a referendum may even pass in Florida, which requires 60% of the vote, because the Republicans got ahead of the people of Florida by banning abortion after 6 weeks of pregnancy, as President Trump has correctly said. Many women do not even know if they are pregnant at that point, and, given that the fetus is only the size of a quarter of an inch or a pomegranate seed at that point in pregnancy, many have trouble thinking of such a small entity as being a human being.
The bottom line is that abortion is going to end up being legal in most states whether one likes that outcome or not. Women who really want an abortion will generally be able to cross a state line and get one. Abortion rights advocates should spend their time raising money to pay for travel expenses for poor women to cross state lines to get an abortion. They should not spend time and money forcing states like Mormon Utah or evangelical Christian Alabama to allow, on their own territory, what the people of those states deem to be the taking of a human life.
There are some sound constitutional reasons for keeping decisions on moral and religious matters at the State level, which is why the First Amendment forbade a national establishment of religion, which might have displaced the established Congregationalist Church in Connecticut, Massachusetts, and New Hampshire, in 1791. Come to think of it, Americans in those three New England states are very moralistic in 2024, and they are particularly eager to this day to impose their moral views on abortion on Mormons in Utah or fundamentalist Christians in Alabama who have very different moral views.
Religious belief, moral beliefs, tastes, preferences, and even the conditions of day-to-day life differ greatly among the 50 states, which means that a national rule will often make more people unhappy than leaving a matter to the states to decide. In the 1970's, President Jimmy Carter established a national speed limit of 55 miles per hour which made sense in New Jersey, our most population dense state, but which made no sense in Montana, which is 48th in population density. When President Ronald Reagan returned the power to set speed limits to the states in the 1980's, Montana abolished its speed limit for a while, replacing it with a rule that you should drive at a speed that is safe given the road conditions you are driving in. Happiness went up in Montana and it stayed the same in New Jersey. This is the genius of federalism.
Another reason for leaving policy-making power at the state level is that the states will compete with each other and will experiment to attract people and businesses, which is a good thing. Americans are abandoning high tax, high regulation blue states in droves to move to low tax and low regulation red states like Florida and Texas. Consider Elon Musk's decision to move SpaceX from California to Texas. Federalism and the competition among states is a good thing, which we should favor. We should not be imposing one-size fits all national rules on abortion, which is one of the many reasons why Dobbs v. Jackson Women's Health Organization (2022) was correctly decided.
Kamala Harris's proposal that we abolish the filibuster to establish a national abortion law is an unsound idea for four reasons: First, it will lead to Republicans following suit and abolishing the filibuster to pass laws that many Democrats will hate; second, the 2024 elections for the presidency and both Houses of Congress are likely to be very close, which means there will be no popular mandate for a constitutional change like abolishing the filibuster; third, the filibuster and the certainty and predictability it creates are a very good thing for liberty and economic growth; and fourth, a national law is the wrong approach for our transcontinental democracy, which is the third most populous nation on the earth, and which has many state and regional sub-cultures.
