The Role of Congress in a Post-Roe World
Republicans will have a constitutional basis to put their pro-life beliefs into practice if they choose to do so.
The leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization signals that roe and Casey are likely to be phased out in the coming months. This leak has sparked a series of political debates what impact this will have on the midterm electionsto the effects of the leak itself, on the next steps for abortion rights. On the last point, many right-wingers breathe a sigh of relief that the abortion issue can finally go “back to the States”.
Even pro-choice advocates admit that roe is bad law. roe made abortion a constitutional right the following realities: Abortion is not a right mentioned or implied in the Constitution, there has been no history in this nation protecting abortion as a right, and the United States has a long history of laws prohibiting abortion. If the Supreme Court actually overrules roe and Casey, it will be a good and healthy thing for the Republic for moral, legal and political reasons. But the question is who decidesAbortion policy if and when Supreme Court overrules roe and Casey? Is abortion policy just returning to the States? Or maybe Congress has a role in abortion legislation in a post-roe America?
Assuming the final decision in Dobbs actually overrule roe and CaseyIt is important summarize the facts and legal implications of Dobbs Case itself. In 2018, Mississippi passed state law banning almost all abortions after 15 weeks. A Mississippi abortion facility filed a lawsuit alleging the state had failed to provide evidence that unborn children are viable at 15 weeks. Because current Supreme Court precedent prohibits states from banning abortion before the viability of the fetus, the lawsuit alleges that the state statute is at odds with current Supreme Court precedent. Therefore, they argued, Mississippi law was unconstitutional.
If the court’s final decision in Dobbs overruled roe and Casey, his rationale will be that while the Mississippi Statute does in fact conflict with Supreme Court precedent, the statute can stand because the previous Supreme Court precedent is flawed and therefore must be overridden. It’s important to understand that such a ruling would not necessarily “send the issue back to the States.” It would merely state that the enshrining of abortion as a constitutional right was not legally correct and is therefore being overruled.
Conservatives must not conclude that abortion is bound to become an issue for States if roe and Casey Autumn. It is true that abortion would decline to the legislaturethere will be nothing in the Dobbs decision, and nothing in the United States Constitution to prevent Congress from considering and passing pro-life legislation. If Congress is ready and willing to deal with the abortion issue, there are at least two areas of the Constitution that give it reason to try: 14th amendment and the commercial clause.
The 14th Amendment to the Constitution, ratified in 1868, was passed primarily to ensure that no state would deny a certain group of people “equal protection of law” or “deprive any person of life, liberty, or property without due process.” ” May be law.” The Equal Protection and Due Process Clauses of Amendment were passed to try to protect emancipated African-American slaves from legal discrimination at the state level. But later court decisions and a reasonable reading of the amendment’s text make it clear that these sections of the 14th Amendment protect “any person,” not a specific group of people. Importantly, the 14th Amendment is not just an expression of an ideal; it has teeth. The final section of the 14th Amendment provides that “Congress shall have the authority to enforce the provisions of this article by appropriate legislation.”
From here the argument is simple. Every person is protected by the equal protections and due process clauses of the 14th Amendment. Modern science provides numerous reasons to believe that the unborn child in the womb is a human being, a person. Therefore, no state can deny an unborn child in the womb the same protections of the law or deny that child its life, liberty or property without due process of law. If the Supreme Court ever decides that this language applies to unborn persons, then abortion will be constitutionally outlawed. This reasoning was brought to justice roe and was acknowledged and dismissed by Judge Blackmun.
However, in the absence of such a court ruling, the 14th Amendment still applies to the congress the express authority to legislate to enforce these safeguards. A pro-life Congress could pass legislation invoking the 14th Amendment, declaring that at any given point in time (whether conception, implantation, or detection of a heartbeat), an unborn child is a person and is therefore subject to due process or equal protection cannot be denied of the laws. Such a law would certainly be challenged in court, and there is no shortage of pro-abortion advocates willing to take up such a cause. Still, a pro-life Congress would have the legitimate ability to exercise its executive powers under the 14th Amendment in this way if it so chose.
Aside from the 14th law enforcement amendment, Congress could enact abortion legislation via the Commerce Clause. Article I, Section 8 of the Constitution gives Congress the power to “regulate commerce… between the various States.” Putt past abuses Apart from this clause, the power to trade is expressly included in the constitution. Congress has the express power to regulate any type of commercial activity that crosses state lines.
if roe is repealed and states begin to pass abortion laws, there will inevitably be instances where abortion is restricted in one state and accessible in a neighboring state. Congress could pass legislation prohibiting someone from crossing state lines to have an abortion under certain circumstances. In particular, Congress could prohibit an adult from taking a minor across state lines to assist the minor with an abortion. Regular concerns about sex traffickers transportation of their victims obtaining abortions, at least the latter proposition should be considered.
There was already attempts by conservative states to prevent their residents from having abortions in other states where the practice remains legal. These state laws are being challenged under the Dormant Commerce Clause Doctrine, which essentially states that the Commerce Clause implicitly prevents states from making laws affecting interstate commerce. This tension will lead to an interesting legal question about American federalism: Does the Commerce Clause grant Congress the power to regulate interstate access to abortion? Does the Dormant Commerce Clause prohibit states from forbidding their residents to cross state lines to have an abortion? These issues need to be discussed, debated and, in all likelihood, addressed by the courts.
The above arguments only suggest that Congress has authority regulate abortion, not them requirement to. There is prominent voices within the Republican Party willing to consider federal anti-life laws. There are others who believe that this can or must be a matter for States to decide. But assuming the Dobbs decision actually prevails roe and Casey, Pro-life conservatives should know that there is a legitimate reason for federal anti-abortion legislation. The Republican federal legislature should have a real discussion on this issue and consider all available options, rather than arguing that it is inherently “a problem for the states.”
if roe falls, many (if not all) states are likely to consider and enact some form of abortion law. But as Hadley Arkes convincingly emphasizedthe movement against it roe and at the heart of the abortion regime is the protection of innocent life, not the inappropriate exercise of “brute judicial power.” So when overriding roe would be a major win for both the rule of law and the pro-life movement, conservatives must remember that their overarching goal is to stop abortion, not simply handing the problem back to states.
Republicans who claim to be brave for life have been elected to federal offices for years. Once the Dobbs opinion is officially released, they will likely have a constitutional basis to put this pro-life position into practice if they choose to do so. It will be interesting to see how conservatives in Congress react. Some will push for aggressive anti-life legislation, while others will insist that this should be decided at the state level. The conversation must be allowed to take place. Conservatives must recognize that there is a constitutional basis for passing federal anti-life laws. If they choose to let the state legislature decide this solely, it should be known that this will have been a choice, not an inevitability.
Frank DeVito is an attorney and current associate of the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.