Congress' Abortion Law: Federal Power Play?

The question of whether Congress can pass a federal abortion law is a highly debated topic in the United States. The country witnessed a wave of discussions and protests following the Supreme Court's overturning of Roe v. Wade, which protected the federal constitutional right to abortion for nearly 50 years. This decision gave states the power to restrict or prohibit abortion, resulting in a divide between abortion deserts and abortion havens. While Congress has the power to pass laws, it may face court challenges claiming that the Constitution does not authorize such legislation. The Supreme Court's role in interpreting the Constitution and federal statutes adds complexity to this debate, as Congress's ability to counter the Court's rulings depends on the nature of the interpreted laws.

Congress can pass a law protecting abortion rights

If Roe v. Wade is overturned, Congress could pass a law that does essentially what the Supreme Court has mandated for the last 50 years: make abortion legal in every US state. This is not without controversy, however, as it may infringe on states' rights. 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 use its power to regulate interstate commerce to make a law protecting abortion rights. However, this is a complex issue, as the Supreme Court has defined this power very broadly, but it has also placed limits on it. For example, in United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act, saying that it intruded on the states' traditional police powers.

Another way Congress could protect abortion rights is by using its Spending Clause power. Via this route, Congress could offer money to the states for health care, but condition the receipt of such money on the state decriminalizing abortion.

The Women's Health Protection Act

Congress has the power to pass a federal abortion law. In fact, in September 2021, the House of Representatives passed the Women's Health Protection Act (WHPA) by a vote of 218-211, and again by a vote of 219-210 in July 2022. The WHPA is a federal law that seeks to protect the right to access abortion care services and to provide abortion care, free from medically unnecessary restrictions and bans.

The WHPA was introduced in the United States House of Representatives and aimed to expand abortion rights established in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The act was first introduced in 2013 by Congresswoman Judy Chu and sponsored by Senator Richard Blumenthal. It was re-introduced in the 117th Congress in response to Whole Woman's Health v. Jackson and later Dobbs v. Jackson Women's Health Organization.

The WHPA is necessary to protect a person's ability to determine whether to continue or end a pregnancy and to protect a healthcare provider's ability to provide abortion services. It seeks to address restrictions on reproductive health, including abortion, that perpetuate systems of oppression, lack of bodily autonomy, white supremacy, and anti-Black racism. The act also intends to protect all people with the capacity for pregnancy, including cisfeminine, transgender men, non-binary individuals, and others who are harmed by restrictions on abortion.

The WHPA is also meant to promote access to abortion services and women's ability to participate equally in the economic and social life of the United States. It is important to note that the terms "woman" and "women" are used in the bill to reflect the identity of the majority of people targeted and affected by restrictions on abortion services. However, the act seeks to protect all individuals with the capacity for pregnancy.

Roe v. Wade overturned by the Supreme Court

Roe v. Wade was a landmark case in 1973 that saw the Supreme Court recognize the right to liberty and privacy, which includes the right to decide whether to continue a pregnancy. The ruling held that the right to privacy is protected by the Fourteenth Amendment of the U.S. Constitution and encompasses a woman's decision to terminate her pregnancy.

The case was filed in 1970 by Coffee and Weddington on behalf of McCorvey, under the legal pseudonym "Jane Roe". The lawsuit challenged a Texas law that prohibited abortions except when necessary to save the mother's life. A three-judge panel unanimously ruled in favor of McCorvey, declaring the Texas law unconstitutional as it violated the right to privacy found in the Ninth Amendment.

However, in June 2022, the Supreme Court overturned Roe v. Wade, abandoning its duty to protect fundamental rights. This decision has had a devastating impact, with more than a dozen states banning abortion outright, forcing people to travel long distances to access abortion care or carry pregnancies against their will, violating their human rights.

The power to overturn Roe v. Wade lies in the Supreme Court's ability to interpret, uphold, or strike down any law, a power assumed by the court itself in the early 1800s. This power is undemocratic and has had a significant impact on the political landscape, shifting the abortion debate to state legislatures and causing cultural wars.

In response to the Supreme Court's decision, Congress could pass a federal law protecting abortion rights and making abortion legal across the country. While Democrats in the House have passed such a law, the Women's Health Protection Act, it requires 60 votes in the Senate, which is currently an unlikely outcome.

Congress's power to regulate interstate commerce

Congress has the power to pass a federal abortion law. In the context of abortion, Congress's power to regulate interstate commerce is primarily exercised through the Freedom of Access to Clinic Entrances Act (FACE Act). The FACE Act was enacted in 1994 to address violent and obstructionist tactics used by some anti-abortion activists to block access to abortion clinics. The act prohibits the use of force, physical obstruction, or threats of force to injure, intimidate, or interfere with anyone obtaining or providing reproductive health services.

The constitutionality of the FACE Act has been debated, particularly in light of the Supreme Court's decision in United States v. Lopez in 1995. In that case, the Supreme Court held that the Gun-Free School Zones Act exceeded Congress's commerce power and was therefore unconstitutional. While the Lopez decision does not directly address the FACE Act, it provides strong authority for arguments against its constitutionality.

The impact of the Lopez decision on the FACE Act is complex and has been the subject of legal scholarship. Some argue that the FACE Act exceeds meaningful limits on the Commerce Clause and that state law is better equipped to address violent anti-abortion activity. Others contend that Congress has the power to regulate interstate commerce and that the FACE Act falls within the scope of this power.

Ultimately, the Supreme Court has the final say in interpreting the Constitution and determining the limits of Congress's power to regulate interstate commerce. The court's rulings can shape the legal landscape for abortion access and have far-reaching consequences for reproductive rights in the United States.

Court challenges and the Constitution

The Supreme Court, dominated by justices hostile to abortion rights, overturned Roe v. Wade in June 2022 in the Dobbs v. Jackson Women's Health Organization case. This ruling ended the federal constitutional right to abortion and shifted the power to regulate abortion to the states. The political landscape in the US is such that the fate of abortion access varies significantly across states, with some guaranteeing abortion rights and others imposing stringent restrictions.

The abortion debate has sparked legal challenges at the state level, with abortion providers and clinics arguing that there is a constitutional right to receive abortion care and that restrictive laws violate this right. This legal strategy, known as "third-party standing," allows providers to assert the rights of their patients when it is challenging for pregnant individuals to personally challenge abortion restrictions due to time constraints, financial limitations, and privacy concerns. Several state courts have temporarily blocked abortion bans while litigation on their constitutionality is ongoing, and these challenges will ultimately be decided by each state's highest court.

The highest courts in Florida, Minnesota, and Massachusetts have ruled that their state constitutions provide a more robust right to privacy and due process, encompassing abortion rights. Conversely, the Iowa Supreme Court reversed its previous decision and found that the state constitution does not confer a fundamental right to abortion. These varying interpretations of state constitutions and the differing levels of protection for abortion rights across the US underscore the complex and evolving nature of abortion litigation in the post-Roe era.

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