How the Supreme Court Could Approach Federal Laws Upholding—or Banning—Abortion
The Supreme Court’s decision to overturn Roe v. Wade has implications for legal readings of constitutional clauses regarding commerce and due process, among other topics.Photograph by Nathan Howard / Getty
Without Roe, abortion is now a state-by-state issue. Is nationwide action by Congress the next frontier?
Last week, the Supreme Court overturned Roe v. Wade, eliminating the constitutional right to abortion and returning the issue to the states, many of which have already enacted harsh bans on the procedure. Some Republicans have floated the possibility of a federal statute banning abortion nationwide; Democrats, meanwhile, have spoken of a federal law codifying Roe, but haven’t been able to overcome the Senate’s filibuster math. To discuss what’s in store, and how the Court might view legislative responses to the decision, I spoke by phone with Leah Litman, an assistant professor of law at the University of Michigan and a co-host of the “Strict Scrutiny” podcast. During our conversation, which has been edited for length and clarity, we touched on the different legal approaches the Court would take in assessing a national law that either bans or enshrines abortion, the distinct threats to abortion laws in blue states, and whether disagreements among the Court’s conservatives, as embodied in the concurring opinions written by Justices John Roberts and Brett Kavanaugh, offer any real room for compromise.
If Republicans take power in Congress and the White House, perhaps in 2024, they may try to pass a federal law banning abortion. How would the Supreme Court view such a ban? Does the decision last week provide any hints?
At minimum, this opinion makes clear that a majority of the Court believes that such legislation would not violate the due-process clause of the Fifth Amendment on the ground that it infringes on unenumerated, fundamental rights to privacy or abortion, or violates the equal-protection principles that are incorporated into the same amendment. What it doesn’t answer, however, is whether a majority of the Court would believe that Congress possesses the authority under its enumerated or delegated powers to enact that legislation.
There are at least two bases on which Congress might enact a federal abortion ban. One would be under its power to regulate interstate commerce. Some of the conservative Justices have adopted a pretty limited reading of Congress’s powers to regulate interstate commerce, but there could be some ways for a Republican legislature to write a statute that makes it more likely to be upheld on Commerce Clause grounds. Say [Congress] writes a statute that says, “No abortion can be performed if it uses any device that has travelled in interstate commerce or any medication that contains a component that has travelled in interstate commerce.”
The second basis is that Congress might say, “We are enacting this legislation under our power to enforce Section 5 of the Fourteenth Amendment. We believe that fetuses are people. Therefore, we are enforcing and protecting fetal personhood and rights to life.” Would the six conservatives conclude that Congress lacks the authority to enact either version of the statute, or reject both of those theories? I don’t think we know. Chief Justice Roberts has taken more expansive views of Congress’s power.
So the Chief Justice, despite having more qualms about this decision than the other five conservatives, actually has a more expansive view of congressional power, and so he may be more likely to uphold a congressional ban?
Yes, exactly.
The counter-argument would be that a federal law banning abortion violates the Commerce Clause by getting the federal government too involved in state actions. Is that accurate?
Yes. That’s an argument under the Commerce Clause, but the Court’s cases right now allow Congress to regulate more traditional areas of state concern if they include what’s called a jurisdictional hook. That is, limit the statute to regulating procedures that involve some element of interstate commerce.
What’s the upshot of that? That they could find a way to ban abortion nationwide, essentially?
Exactly.
You alluded to this when you mentioned the Fourteenth Amendment—there is stuff in the decision just about protecting life. That reading would seem to give Congress fairly broad powers to do what it wished, right?
That’s exactly right. If you read the section of the opinion that explains why Mississippi’s statute is constitutional under the new standard of review that the Court announced, the Court basically says in a single paragraph that Mississippi viewed fetuses as unborn human beings and that that was a rational basis for it to act on. Even for Justices like, say, Justice Clarence Thomas, who have a narrower reading of the Commerce Clause, I can easily imagine them embracing the theory that Congress could view fetuses as human beings, and therefore ban abortion on that basis.
What about flipping it the other way? It doesn’t seem like Democrats anytime soon are going to get rid of the filibuster and codify a bill into law that protects the right to abortion, but how do you think this Court might look at such a law? We’ve been hearing for a long time from conservatives that the importance of getting rid of Roe was to bring this power back to the people and their legislators. I’m curious how you think a conservative Court might view a law codifying Roe.
I’m extremely skeptical that they would allow Congress to codify a federal right to abortion. They are much more likely to conclude that such a statute exceeds Congress’s powers because they don’t believe that there is any right protected by the Fourteenth Amendment that Congress might be safeguarding if it enacted a federal protection for abortion. So that possible basis for the law goes out, and that leaves the Commerce Clause. Given how easy it has been for [the Court] to find ways to strike down statutes that they don’t like under the Commerce Clause—like in N.F.I.B. v. Sebelius, on the Affordable Care Act—I’m not at all confident that they would say, “Yes, Congress has the authority to codify Roe or the right to an abortion.”
There has been a slight tension in progressive commentary between this idea that Democrats in Washington have to do something, have to codify Roe and get rid of the filibuster, and, at the same time, this idea that the Court will do whatever it wants. I don’t see why the Court in its current makeup would allow a national bill to stand. It doesn’t quite seem like a long-term solution.
I don’t see it differently. I guess I would just say two things. One is that I don’t want the White House or Congress to not be doing things just because they think that the Court will strike them down. I mean, my goodness, the Court is poised to tell the E.P.A. that it can’t regulate climate change. I don’t think that should stop Democrats from trying. I do think it means they have to figure out how to address this conservative wrecking ball that is standing in front of them.