The Future Of Roe: Can Congress Pass A Law?

Congress could pass a federal law that would supersede the Supreme Court's decision to overturn Roe v. Wade and protect abortion services. However, the Supreme Court could then deem the new abortion law unconstitutional. Congress could also keep states from preventing women from travelling for abortions. In May 2022, former solicitor general of Virginia William H. Hurd wrote that even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law.

Congress could pass a law codifying Roe, but it may not pass a court challenge

In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that says women have a right to abortion without excessive government restrictions. It would be binding for all states.

Even though the Supreme Court overturned Roe v. Wade, Congress could introduce and pass legislation that would federally protect abortion services. That would effectively supersede the court’s decision, according to George Washington University Professor Casey Burgat. However, the Supreme Court could then deem the new abortion law unconstitutional in a future case. A federal law is the best, most legitimate means of codifying the principles of Roe v Wade, but it's not bullet-proof because a future Supreme Court case can render the new law unconstitutional.

If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA. It will likely be valid in areas where Congress is the ultimate legislature (e.g., District of Columbia, Puerto Rico, Virgin Islands, and the Pacific island jurisdictions), but probably not in the 50 states. Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

Even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law, writes former solicitor general of Virginia William H. Hurd. Congress can, however, keep states from preventing women from traveling for abortion, he contends.

Congress could keep states from preventing women from travelling for an abortion

Congress could pass a law codifying Roe v. Wade, which would federally protect abortion services and supersede the Supreme Court's decision to overturn it. However, the Supreme Court could then deem the new abortion law unconstitutional.

Even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law. However, Congress can keep states from preventing women from travelling for an abortion.

Congress could use its power to regulate interstate commerce to pass a Roe statute. However, this power is limited, and the Supreme Court has invalidated portions of federal law in this area before. For example, in 2000, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

To codify Roe for all Americans, Congress would need to pass a law that provides the same protections as Roe v. Wade, such as the right to abortion without excessive government restrictions. This law would be binding for all states. However, despite some politicians saying that they want to "codify Roe", Congress is not currently looking to enshrine Roe in law.

Congress could introduce and pass legislation that would federally protect abortion services

However, even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law. Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

Congress can also keep states from preventing women from travelling for abortion. After the leaked draft of Justice Samuel Alito’s abortion decision, supporters of Roe v. Wade are again pressing to “codify” that 1973 decision by writing its basic provisions into a federal statute. The idea is to preserve existing abortion rights nationwide without having to rely upon the U.S. Supreme Court’s interpretation of the Constitution.

Congress could pass a Roe statute, but it would likely only be valid in areas where Congress is the ultimate legislature

Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. For example, in a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

Congress could introduce and pass legislation that would federally protect abortion services, effectively superseding the Supreme Court's decision to overturn Roe v. Wade. However, the Supreme Court could then deem the new abortion law unconstitutional in a future case. A federal law is the best, most legitimate means of codifying the principles of Roe v. Wade, but it is not bullet-proof.

To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that says women have a right to abortion without excessive government restrictions. It would be binding for all states.

Congress could pass a law providing the same protections as Roe, but it isn't looking to enshrine Roe in law

However, even if Congress passes a law codifying the right to abortion, it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law. If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA. It will likely be valid in areas where Congress is the ultimate legislature (e.g. the District of Columbia, Puerto Rico, Virgin Islands, and the Pacific island jurisdictions), but probably not in the 50 states.

Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA). Lawmakers introduced legislation last year that would codify Roe v. Wade, but, so far, it has failed to become law.

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