Congressional Power Play: Roe Codification Possible?

The most effective way to codify Roe v. Wade would be for Congress to pass a law that would be binding on all the states, such as the Women's Health Protection Act. However, this is also considered the least likely outcome, as Congress would need to act under the authority of Section 5 of the 14th Amendment or the commerce clause, which grants Congress broad power to regulate foreign and interstate commerce. 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.

The Supreme Court could invalidate a law codifying Roe vs. Wade, as it did with the Violence Against Women Act

Congress could codify Roe vs. Wade into law by passing a law that would affirm a pregnant person's right to an abortion without undue interference. This could be done by passing a law such as the Women's Health Protection Act, which would be binding for all states. However, it is considered unlikely to pass in the Senate.

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. The Supreme Court could invalidate a law codifying Roe vs. Wade on the grounds that it intrudes into the states' traditional police powers and that abortions are not economic activities that substantially affect interstate commerce. This was the reasoning used by the Supreme Court in 2000 when it invalidated portions of the federal Violence Against Women Act (VAWA).

In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court overturned Roe vs. Wade (1973), which had guaranteed a constitutional right to abortion. As a result, state legislatures will now enact their own laws regarding abortion, with some states continuing to restrict abortion rights while others codify Roe vs. Wade.

Congress could pass a law that would be binding for all states, such as the Women's Health Protection Act

Congress could act under the authority of Section 5 of the 14th Amendment, which authorises Congress to pass laws enforcing the amendment's guarantees of liberty, equality and due process. Alternatively, Congress could rely on its power to regulate interstate commerce, although the Supreme Court has placed limits on this power. In the United States v. Morrison case in 2000, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA), reasoning that the Act intruded into the states' traditional police powers. The Supreme Court could reach the same result if Congress were to codify Roe, arguing that such a statute intrudes into the states' police powers and that abortions are not economic activities that substantially affect interstate commerce.

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

Congress could act under the authority of Section 5 of the 14th Amendment to codify Roe vs. Wade

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 also rely on its power to regulate interstate commerce, although the Supreme Court has 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), reasoning that the VAWA intruded into the states' traditional police powers. The Supreme Court could reach the same result if Congress codifies Roe vs. Wade.

Congress could use its power to regulate interstate commerce to codify Roe vs. Wade

However, Congress could still pass a law codifying Roe vs. Wade that would be binding for all states. This could take the form of the Women's Health Protection Act, which was passed in the House in September 2021 but is considered unlikely to pass in the Senate. Even if Congress passes such a law, it may not pass a court challenge claiming that the Constitution does not give it the authority to enact such a law.

To adopt a law codifying Roe, Congress must act either under the authority of Section 5 of the 14th Amendment, which authorises Congress to pass laws enforcing the amendment's guarantees of liberty, equality and due process, or the commerce clause, which grants Congress broad power to regulate foreign and interstate commerce.

Congress can keep states from preventing women from travelling for abortions

Supporters of a national Roe law may also rely on Congress' power to regulate interstate commerce. However, the Supreme Court has defined that power very broadly and has also placed limits on it. In the 2000 case of United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA), saying that the VAWA intruded into the states' traditional police powers. The Supreme Court could reach the same result if Congress codifies Roe, reasoning that such a statute intrudes into the states' traditional police powers.

Despite these challenges, Congress can still play a role in protecting abortion rights, even if it cannot directly codify Roe v. Wade. For example, Congress can keep states from preventing women from travelling for abortions, as former solicitor general of Virginia William H. Hurd contends.

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