Kamala Harris’ abortion lies: Here’s what she and Trump can — and CAN’T — do

The biggest lie roiling the presidential election is Kamala Harris’ claim that Donald Trump will ban abortion nationwide.

Abortion rights do not hinge on who is elected president, Trump or Harris.

Or on which party controls Congress.  

The issue is out of their hands.

Wherever you live, state legislators elected in your own state will determine your abortion rights.

That is what the US Supreme Court ruled in 2022, when it overturned Roe v. Wade.

As a pro-choice woman, I understand some voters are putting aside concerns about inflation, the border, foreign policy and other issues out of fear they or their daughters won’t have freedom of choice.  

They deserve the truth — but they’re not getting it from Harris, who’s all too willing to spread lies about abortion policy to shore up her sagging support.

At a rally in Houston, Texas, last week featuring pop star Beyoncé, Harris pumped up the fear.

“If you think you are protected from a Trump abortion ban because you live in Michigan, Pennsylvania, Nevada, New York or California,” she said, “please know, no one is protected.”

That’s 100% false. 

But instead of fact-checking, the liberal media are letting that lie do its dirty work, scaring women into voting for Harris.

Trump has vowed to veto a national ban on abortion.

But you don’t have to rely on his word.

Read the US Constitution.

The Constitution reserves for states authority over the health and welfare of their own residents.

The federal government has only limited, enumerated powers, such as levying taxes and regulating interstate commerce — but not the power to regulate most health-care matters.

Therefore, any effort by Congress to ban abortion nationally would likely be overturned by the courts as an unconstitutional intrusion into state affairs.

That includes Republican Sen. Lindsey Graham’s Pain-Capable Unborn Child Protection Act, which would make it a crime to abort a fetus after 20 weeks.

It also includes the Women’s Health Protection Act of 2022, a Democratic proposal that would guarantee access to abortion nationwide, preempting state laws to the contrary.

This bill goes so far beyond Congress’ enumerated powers that its authors have omitted the “findings” section that’s meant to describe Congress’ authority to pass it — because there is none.

The same is true of Harris’ pledge to codify Roe v. Wade.

That’s unlikely to fly, short of a constitutional amendment.

The US Supreme Court recognized states’ power to regulate matters of health care as long ago as 1905, when a resident of Cambridge, Mass., challenged a local ordinance requiring the smallpox vaccine.

In that case, the court ruled that states could require residents to be vaccinated.

But the court has never recognized a federal power to do so, not even during the COVID pandemic. 

That’s why vaccination laws vary from state to state, just like abortion laws do — especially now that Roe has been struck down.

Members of Congress trying to legislate abortion restrictions or abortion guarantees have generally used the Commerce Clause as the pretext for their authority, as if performing an abortion could possibly be considered interstate commerce. 

At one time, the court allowed Congress to stretch the meaning of the Commerce Clause like a rubber band to authorize federal meddling into virtually anything. 

It was even used that way by the authors of the Partial Birth Abortion Ban Act in 2003.

But recently, in a string of rulings, the court has cracked down on misuse of the Commerce Clause to extend Congress’ authority over areas otherwise reserved for the states.

That’s why Harris’ vow to codify Roe v. Wade, and her warnings about a national abortion ban signed by Trump, are uninformed and unconvincing. 

When the court struck down Roe in 2022, the justices didn’t look to Congress to make abortion law.

They looked to the states.  

Pro-choice voters need to know that the action on reproductive rights has now shifted from Washington, DC, to their own state capitals.

Ten states have abortion measures on the ballot this November.

It’s possible to support increased access to abortion procedures, like Florida’s measure does, and still vote for Trump — because as president, he won’t have the power to do a thing about it.

The next battle is over the abortion pill mifepristone, which now accounts for 63% of pregnancy terminations, according to the Guttmacher Institute.

Fourteen states ban the drug.

Three of them, Missouri, Kansas and Idaho have sued the Federal Drug Administration to make it harder for women in those states to self-abort. 

Trump has said that the federal government “should have nothing to do with this issue,” infuriating pro-lifers — but staying true to the principle that state voters should decide it.

That’s the legal reality. 

Instead of hanging with Beyoncé, Harris should take a refresher course on the US Constitution — and drop the scare tactics.

Betsy McCaughey is a former lieutenant governor of New York and co-founder of the Committee to Save Our City.