With the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization pushed Congress to codify women’s abortion rights into federal law. President Joe Biden verbally signaled before the midterm elections that he would try to pass a federal law protecting abortion rights through the legislature, saying, “If you give me two more senators in the U.S. Senate , I promise you, I promise you, we will codify Roe and make Roe the law of the land again. Despite Biden’s pledge to support this legislation, Congress most likely lacks the constitutional power to enforce this law, even if a pro-choice majority were elected.
Dobbs v. Jackson Women’s Health Organization overturned decades of case law justifying abortion as a “quasi-fundamental right.” Starting with Roe v. Wade, the court said abortion was protected by the penumbra of privacy and the Fourteenth Amendment. Finally, in 1991, Planned Parenthood v. Casey contradicted the previous decision by stating that abortion was not considered completely fundamental and proposed the excessive demand test instead of Roe’s quarterly framework. This year, the Court decided that abortion is not protected by these penumbra of privacy or by the Fourteenth Amendment. In this decision, they officially determined that abortion is not considered a fundamental right protected by the Constitution because the Constitution makes no mention of abortion. Therefore, it is up to the states to decide on abortion legislation.
Women’s rights, which are rarely enumerated explicitly in the Constitution, have often escaped the jurisdiction of Congress. In fact, the United States Constitution did not originally mention women’s equality or positive women’s rights. The Constitution operates within a framework of negative rights that dictate what the government is not allowed to do; for example, Congress cannot freely restrict free speech because it is considered a basic right under the First Amendment. The few times the Constitution specifically mentions equality or women’s rights are the Nineteenth Amendment – granting women the right to vote – and the Fourteenth Amendment – granting equal protection under the law. Although this latter amendment is used for dilemmas regarding gender discrimination, it does not explicitly guarantee women’s core equality rights, such as reproductive rights.
To pass federal laws to protect against discrimination, including sex discrimination, Congress must often assert the power of the trade clause. The Commerce Clause states that Congress has the ability “to regulate commerce with foreign nations, and between the several States, and with Indian tribes.” Essentially, the legislature has complete authority over interstate commerce.
In cases such as Heart of Atlanta Motel, Inc. v. United States, the Supreme Court upheld the constitutionality of the Civil Rights Act of 1964 based on the powers of the trade clause. To prohibit private discrimination, the basic rights that can be found in the Fourteenth Amendment can often be protected by Congress if the legislature can prove a connection to interstate commerce. The majority of hospitals and clinics in the United States are privately owned, so for Congress to exercise authority over them regarding abortion, they would have to claim the Trade Clause.
There has been a tumultuous relationship between the power of the trade clause and the jurisprudence of the Supreme Court. From 1937 to 1995, the Court did not strike down any trade clause cases on the grounds that Congress had overstepped its bounds. However, what broke this long-standing precedent was United States v. Lopez; the Court determined that the gun-free school zone law was not closely related to interstate commerce and struck down the law as unconstitutional.
Just five years later, the United States v. Morrison case further restricted this power of Congress. In Morrison, the constitutionality of the Violence Against Women Act (VAWA) was questioned. Part of VAWA promised those affected by gender-based violence respite in the form of a federal civil remedy. Ultimately, the court decided that this was too far removed from Congress’ power over interstate commerce.
The dissenting justices in the majority decision represent the difficulty of developing a consistent judicial philosophy regarding the trade clause. Judge Breyer, one of the dissenters, wrote that cases like Morrison “illustrate the difficulty of finding a practical touchstone of the judicial commerce clause”. Further, Justice Souter argued that there is clear evidence – in the form of research – that violence against women impacts interstate commerce.
The proposed new law, titled the Women’s Health Protection Act (WHPA) and backed by Democrats, aims to “end harmful restrictions, federally protect access to abortion services for everyone, regardless of location where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner. Through this framework, the WHPA mirrors the Civil Rights Act of 1964. As seen in Heart of Atlanta Motel v. United States, Congress plans to articulate its authority over discrimination through the Commerce Clause. Whereas the Supreme Court denied abortion’s connection to the Fourteenth Amendment and the limited powers of the Trade Clause regarding women’s rights in United States v. Morrison, it appears Congress has no jurisprudential support behind its attempt to codify Roe, at least with this Supreme Court bench. From Dobbs vs. Jackson constitutionally denies abortion as a basic right, this topic is not considered as important as other forms of discrimination protected by the Fourteenth Amendment.
The ability of Congress to constitutionally pass federal abortion legislation depends entirely on the makeup of the Supreme Court. Once new justices enter the court, it is entirely possible that the Court will begin an ideological shift in favor of abortion rights and congressional authority in the matter. The Court, which has received four new appointments in the past five years, is unlikely to change its ideology anytime soon. As seen with the history of trade clause powers rulings, those who sit on the tribunal often dictate a long-standing philosophy. The Court during the New Deal was specifically liberal in its interpretation of the trade clause while the Rehnquist Court, from the 1990s, was more conservative in its estimation of what Congress could do with these powers.
Challenging a court that has not experienced ideological change often results in congressional legislation being found unconstitutional. In Employment Division of Oregon v. Smith, the Supreme Court ruled that generally applicable laws infringing the right to free exercise of religion were valid. Just three years later, Congress—which disagreed with the decision—created the Religious Freedom Restoration Act, which the Court later struck down in City of Boerne v. Flores. By this decision, the majority essentially asserted that Congress had no more authority than the Court to decide how to interpret the rights enumerated in the Constitution.
The Supreme Court has struck down congressional retaliation in other cases, such as Dickerson v. United States. Despite legislative attempts to circumvent Miranda’s warnings, the Supreme Court upheld its decision in Miranda v. Arizona and the case that reinforced the practice of alerting inmates to their right to remain silent and to obtain counsel.
So is Congress in a position to pass federal abortion legislation? it can try! It is doubtful that the legislature will succeed in enforcing abortion legislation until the Supreme Court effects an ideological shift on reproductive rights.