Congressional Power: Roe V. Wade's Legal Future

The question of whether Congress can make Roe v Wade law is a complex one. While Congress could pass 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 has said that under the separation of powers, Congress has no authority to interpret constitutional rights differently than the courts. However, Congress could make the law valid in areas where it is the ultimate legislature, such as the District of Columbia and Puerto Rico.

Congress can keep states from preventing women from travelling for abortions

Congress could pass a law codifying the right to abortion, but 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 abortions.

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.

The Supreme Court has disagreed with Congress's authority to interpret constitutional rights differently than the courts. If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA (Religious Freedom Restoration Act), which the Supreme Court deemed unconstitutional. 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.

While Biden cannot easily make Roe v. Wade federal law, he could still make it easier to get an abortion.

Congress could pass a law codifying the right to abortion

Despite this, supporters of Roe v. Wade are pressing to "codify" the 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 also keep states from preventing women from travelling for abortion.

Congress does not have the authority to interpret constitutional rights differently than the courts

The Supreme Court has disagreed with Congress's interpretation of constitutional rights in the past. For example, the Supreme Court said that the RFRA, which allowed Congress to override other federal laws, was unconstitutional. If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA and be deemed unconstitutional.

While Congress could make Roe v. Wade law, it is unlikely to pass a court challenge. This means that while Congress technically has the power to make Roe v. Wade law, it is not a practical solution to preserving abortion rights nationwide.

Biden cannot easily make Roe v. Wade federal law, but he could still make it easier to get an abortion. For example, Congress can keep states from preventing women from travelling for abortion.

Congress could make the RFRA override other federal laws

Congress could make the Religious Freedom Restoration Act (RFRA) override other federal laws. This would be Congress acting within its own area of authority. However, the Supreme Court has said that the RFRA is unconstitutional as far as the states are concerned. 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, the Virgin Islands, and the Pacific island jurisdictions), but probably not in the 50 states.

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 abortions.

A Roe statute would likely be valid in areas where Congress is the ultimate legislature

Congress could pass a law codifying the right to abortion, but it may not pass a court challenge claiming the Constitution does not give it the authority to enact such a law.

Congress could make the Religious Freedom Restoration Act (RFRA) override other federal laws, but the Supreme Court said that the RFRA was unconstitutional as far as the states were concerned. If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA.

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