An Indiana Republican Says the State Can Ignore the Constitution to End Legal Abortion. He’s Wrong.

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Commentary My Body. My Rules.

An Indiana Republican Says the State Can Ignore the Constitution to End Legal Abortion. He’s Wrong.

Imani Gandy

Indiana is like a whiny teenager shrieking to Uncle Sam, “You’re not my real dad,” before flouncing onto its bed and shoving earbuds into its ears.

A Republican lawmaker in Indiana has introduced a bill defining abortion as murder and declaring that life begins at conception, with a unique twist on how to enforce the legislation’s restrictions.

The bill, HB 1089, redefines “human being” to include the so-called unborn, thus rendering crimes against an alive, breathing human the same as equivalent to crimes against an egg, blastocyst, zygote, or fetus.

Indiana lawmakers are far from alone in their effort to criminalize abortion. In 2019, several states passed laws banning abortion, whether entirely (like Alabama’s total abortion ban) or effectively (like Georgia’s six-week ban). And lawmakers in one state, Ohio, introduced legislation that would add abortion murder and aggravated abortion murder as new felonies in the criminal code, and subject providers and pregnant patients to stiff penalties including life imprisonment and, in some circumstances, death.

But what sets Indiana’s latest legislative effort apart is language that purports to nullify the U.S. Constitution.

HB 1089 declares that the federal courts have no jurisdiction to “interfere with Indiana’s interest in protecting human physical life from the moment that human physical life begins,” and that federal laws that “fail to protect a person’s inalienable right to life” are null and void in Indiana.

The bill also bars Indiana government agencies and officials from giving force to any court order that fails to recognize that eggs are people. And should federal agents arrest any Indiana government officials for complying with the law, the bill grants Indiana law enforcement the authority to arrest those federal agents.

Indiana is like a whiny teenager shrieking to Uncle Sam, “You’re not my real dad,” before flouncing onto its bed and shoving ear buds into its ears.

Except, Indiana, the federal government is your real dad. Check the supremacy clause. It’s in Article VI of the U.S. Constitution, paragraph two: “The Constitution, and the Laws of the United States … shall be the supreme Law of the Land.”

You got that Indiana? Under the U.S. Constitution, you don’t have the power to nullify federal law.

Rep. Curt Nisly (R-Goshen) has introduced this legislation for at least four years in a row, and it has never gone anywhere. And frankly, there’s no reason to think it’s going to go anywhere now.

But the law is indicative of the mindset of a growing number of anti-choice legislators and advocates who believe that states have the final word regarding the constitutionality of federal laws, that the states can ignore federal laws they think are unconstitutional, and that the federal government has no power to overrule states’ constitutional interpretation. It’s called nullification, and it is anathema to the rule of law. But the rule of law is only as good as the institutions that uphold it, and, right now, those institutions are failing.

In one sense, nullification enthusiasts are right: States can ignore federal laws they think are unconstitutional. Principles of federalism prohibit the federal government from commandeering state resources to help it enforce federal law. The tension between federal and state laws regarding marijuana is an example. Federal law still categorizes marijuana as a controlled substance and prohibits its cultivation, distribution, or usage. But more than half of states have legalized it for medical use, recreational use, or both; federal agents cannot force local law enforcement to help it enforce federal laws regarding marijuana possession and distribution. And, as it stands, federal agents seem to have better things to do than crack down on states that have legalized marijuana. But if the federal government decides people need to stop smoking the Devil’s Lettuce, it could dispatch federal agents to enforce federal law, and the states would have no legal leg to stand on when it comes to opposing such efforts.

The second component of nullification theory—that the federal government lacks authority to overrule a state’s interpretation of the constitutionality of federal law—is not only wrong but so untenable that it would destroy the fabric of the Constitution.

When pressed, nullification proponents will reference the Kentucky and Virginia Resolutions of 1798 and 1799, in which two founding fathers—Thomas Jefferson and James Madison—asserted a state’s right to nullify the Alien and Sedition Acts. The Alien and Sedition Acts were a set of laws enacted by Congress and signed by President John Adams in 1798. Perhaps the most pernicious of the laws—the Sedition Act—made it illegal to “write, print, utter, or publish . . . any false, scandalous and malicious writing” against Congress or the president. (Please don’t tell Donald Trump. We don’t want to give him any ideas.)

But Jefferson and Madison asserted the right to nullification a few years before the Supreme Court issued its 1803 ruling in Marbury v. Madison. In Marbury, widely viewed as the single most important decision in Supreme Court history, the Court for the first time declared an act of Congress unconstitutional. In so doing, the Court established judicial review, cemented itself as the third coequal branch of government, and solidified the system of checks and balances the framers created to ensure no one branch of the federal government became too powerful.

In a relatively ballsy decision, Chief Justice Marshall wrote that “a law repugnant to the Constitution is void,” thus announcing that the Supreme Court had the power to invalidate laws that violated the Constitution. When combined with the supremacy clause, the Court’s ruling in Marbury  means that federal courts can strike down state laws that conflict with the Constitution or the Supreme Court’s interpretation of the Constitution.

There’s simply no question that the Constitution is the supreme law of the land. The framers certainly agreed. In his report to the Virginia delegates just a few years before the Marbury decision, James Madison wrote that declarations by state legislatures regarding the constitutionality of federal law are “expressions of opinion unaccompanied with any other effect than what they may produce on opinion by exciting reflection.”

I’m fairly certain that’s what 18th century white man shade looks like.

Madison further wrote that “[t]he expositions of the judiciary, on the other hand, are carried into immediate effect by force.”

In other words, states are welcome to express an opinion about a federal law, but it remains that—an opinion with absolutely no effect other than the exciting reflections that the opinion may produce.

Alexander Hamilton concurred, writing in Federalist No. 78, “limited constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.”

The Supreme Court has since reiterated that it has the power to strike down state laws that run contrary to the Constitution. In Cooper v. Aaron, after a school board and superintendent in Little Rock, Arkansas, balked at being forced to integrate its public schools in the wake of the Court’s decision in Brown v. Board of Education, the Supreme Court, referencing Marbury, noted that “it is emphatically the province and duty of the judicial department to say what the law is.” The Court pointed out that “if the legislators of the several states may, at will, annul the judgments of the courts of the United Sates, and destroy the rights acquire under those judgments, the constitution itself becomes a solemn mockery.”

Indiana’s anti-choice legislation runs afoul of the Constitution in several ways. It conflicts with the Court’s interpretation that the Constitution protects the rights of pregnant people to terminate a pregnancy up to the point of fetal viability. And since the Supreme Court declined to categorize eggs, blastocysts, zygotes, and fetuses as people in Roe v. Wade and Planned Parenthood v. Casey, Indiana’s attempt to place eggs on the same constitutional footing as people is constitutionally unsound. If the Constitution says a fetus is not a person, Indiana’s declaration that a fetus is a person is of no consequence. It’s merely an opinion that has no effect other than, as Madison put it, the exciting reflections that opinion may produce.

Ronald Dworkin, a noted constitutional scholar and law professor, put it best in his 1993 book Life’s Dominion:

States have no power to overrule the national constitutional arrangement and if a fetus is not part of the constitutional population under that arrangement, states cannot make it one… An American state, then, has no constitutional power to declare a fetus a person or to protect fetal interests at the expense of its citizens’ constitutional rights.

So what does this all mean for Indiana’s law and the lawmakers who support it?

It means that Indiana lawmakers can beat their chests all they wants and bleat about arresting federal officials who try to interfere with the state’s need to protect eggs and force people to carry pregnancies to term, but the Constitution neither protects eggs as people nor forces pregnant people to carry nonviable pregnancies to term.

Should the bill become law, it will be blocked as soon as it’s challenged. Then we will see how serious Indiana is about ignoring court orders and risking contempt of court, at minimum, and potentially a showdown with the federal government.

By way of example, a few months before the Little Rock School Board filed a petition asking a district court to postpone its desegregation plan in Cooper v. Aaron, President Dwight Eisenhower had to intervene. Arkansas Gov. Orval Faubus (D) had mobilized the Arkansas National Guard to bar a group of Black students known as the Little Rock Nine from attending Little Rock Central High School. Eisenhower issued an executive order federalizing the Arkansas National Guard and then ordered them to protect the Black students. So the federal government can flex its might when it wants to.

Of course, this presumes that the federal government would bother to protect abortion rights from state incursion. Under the Trump administration, there’s little reason to be optimistic on that front. Trump’s Department of Justice seems unwilling to enforce federal law when it comes to abortion rights. Take the FACE Act, for example. Congress passed the FACE Act in 1994, making it a federal crime for anyone to use force, the threat of force, or physical obstruction to prevent people from obtaining or providing reproductive health-care services. The statute provides for civil remedies against blocking access to abortion facilities, including fines for those found liable. It falls to the Department of Justice to prosecute those appearing to break the law. But, as my colleague Jessica Mason Pieklo has pointed out, this is an administration that is “unwilling to support the civil rights of transgender students, campus assault survivors, voters of color, and immigrant communities.”

There’s little reason to think that if Indiana Republicans go rogue and throw up a middle finger at the federal government, the federal government will assert its power and force the state to respect the constitutional rights of pregnant Indianans.