Congress And Abortion: Passing A Law To Protect Rights

The question of whether Congress can pass a law protecting abortion rights has been a highly debated topic, especially after the Supreme Court's draft opinion leak in 2022, which suggested a potential overturn of the landmark 1973 Roe v. Wade case that established abortion as a fundamental right nationwide. This leak sparked discussions among politicians and the public about the possibility of Congress stepping in to protect abortion rights through legislation. While some argue that Congress has the power to pass such laws, others highlight political and legal obstacles that complicate the matter.

Congress can regulate abortion using the commerce clause

The power of Congress to regulate abortion through the commerce clause is a highly contested issue. The commerce clause grants Congress the power "to regulate commerce" among states. In the past, Congress has had free rein to regulate under the commerce clause, and there is a precedent for Congress regulating abortion under the commerce clause. For instance, the Partial-Birth Abortion Ban Act was passed pursuant to the commerce clause.

However, the Supreme Court has recently taken a more restrictive view of Congress's power under the commerce clause, and it is unclear whether the federal government can override statewide abortion protections and enact a nationwide abortion ban. The Supreme Court's commerce clause cases are inconsistent, and the doctrine is currently in flux. While some past decisions have read congressional power over economic activity expansively, suggesting that a federal abortion ban could override state abortion protections, other cases require a stronger showing by Congress of economic activity substantially affecting interstate commerce.

Abortion does have economic impacts, and restrictive abortion laws are estimated to cost the economy $105 billion annually. However, the argument against congressional power to regulate abortion under the commerce clause is that, although people pay to get abortions, it is not an economic act and is therefore unregulatable under the legislative body's interstate commerce powers. Individual medical procedures, such as abortions, can be seen as more closely resembling personal possession of a firearm or individual criminal acts than creating a commodity that can be sold on the market.

In conclusion, while Congress has regulated abortion under the commerce clause in the past, the Supreme Court's recent restrictive interpretation of the commerce clause and the uncertain economic nature of abortion procedures make it doubtful that Congress could successfully regulate abortion using the commerce clause in the current judicial and political climate.

Congress could justify a law using the 14th Amendment

In 1973, the Court concluded in Roe v. Wade that the U.S. Constitution protects a woman's decision to terminate her pregnancy under the 14th Amendment. The Court ruled that states may not categorically proscribe abortions by making their performance a crime and that the right to privacy includes a woman's decision to carry a pregnancy to term.

In 2016, the Court provided further guidance on applying the undue burden standard in Whole Woman's Health v. Hellerstedt, invalidating two Texas requirements that applied to abortion providers and physicians who perform the procedure. The Court emphasized that reviewing courts must consider the burdens a law imposes on abortion access together with the benefits those laws confer.

Congress has the authority to pass a law protecting abortion rights under the 14th Amendment, as it vests Congress with "the power to enforce, by appropriate legislation," the due process and equal protection guarantees of the Amendment. This means that Congress could pass a law that makes abortion legal in every US state, overriding state laws that prohibit or restrict abortion access.

However, it is important to note that any such law passed by Congress would be subject to judicial review by the Supreme Court, which has the power to interpret, uphold, or strike down any law passed by Congress. The Supreme Court's decision to overturn Roe v. Wade in 2022 highlights the Court's power in this regard.

Congress could pass a 'body autonomy' law

Congress could pass a body autonomy law that guarantees the right to abortion in every US state. This would essentially be an extension of the Supreme Court's mandate in Roe v. Wade, which protected a woman's right to privacy in obtaining abortions. By passing such a law, Congress would be recognizing the importance of personal autonomy, self-ownership, and self-determination of human beings over their own bodies.

The concept of bodily autonomy is deeply rooted in the idea of individual freedom and personal liberty. It emphasizes the right to make informed choices about one's own body and future, free from fear, violence, or coercion. In the context of medicine and treatment decisions, bodily autonomy, or medical autonomy, is a cornerstone of medical ethics. Individuals must have the capacity to understand and appreciate the consequences of their treatment decisions, and this autonomy is protected by international documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

By passing a body autonomy law, Congress would be taking a stand against the barriers that currently exist to bodily autonomy, such as stereotypes, assumptions, and misconceptions, particularly regarding the rights of women and girls. This was highlighted in the 2021 State of World Population report by UNFPA, which revealed that nearly half of all women are denied their bodily autonomy due to legal, economic, and social barriers. A body autonomy law would empower individuals, especially women, to make their own decisions regarding their health care, contraception, and sexual activity.

Additionally, a body autonomy law could address the role of government in withholding scientific information and blocking patients from making their own treatment choices. For example, federal laws and regulations can prevent patients from accessing certain treatments and hinder doctors from making informed decisions. By prioritizing individual autonomy over "science-based" paternalism, Congress can ensure that individuals have the freedom to make personal, intimate decisions about their own bodies without undue interference.

Congress could pass a law codifying Roe v. Wade

In September last year, the House of Representatives, controlled by the Democratic Party, voted to approve legislation that would secure and expand the right to abortion afforded by Roe v. Wade. The vote was 218 in favour and 211 against. The bill then moved to the Senate, where it failed to pass, requiring 60 votes out of 100 senators.

There are several ways in which Congress could attempt to justify such a law. One way is by using the 14th Amendment of the Constitution. Section 5 of this amendment includes the congressional Enforcement Clause, which allows Congress to enforce the prohibition on states from depriving people of life, liberty, or property without due process. This clause could be used to back a law protecting pregnant people from anti-abortion laws passed by states.

Another approach is to include language in the law that explains how the Dobbs decision misinterpreted the Constitution. Adding a Constitutional Amendment is another possible route, but this would require 35 states to agree.

However, even if a bill making abortion legal nationwide were to be passed, it would likely face challenges from anti-abortion activists and organizations. It could also face constitutional challenges if the Supreme Court rules that a fetus has a right to life, as this could trigger due process protections for fetuses, taking precedence over the rights of the pregnant person.

Congress could pass a law protecting pregnant people from anti-abortion laws

The bill, known as the Women's Health Protection Act, aimed to protect a person's right to end a pregnancy and health care providers' ability to provide services to that end. It is one of several attempts by Congress to pass legislation protecting abortion rights, particularly after the Supreme Court draft opinion that would overturn Roe v. Wade, the 1973 landmark case that made abortion a fundamental right nationwide.

Congress could justify such a law using the 14th Amendment of the Constitution. Section 5 of the amendment, the congressional Enforcement Clause, allows Congress to enforce the prohibition on states from depriving people of life, liberty, or property without due process. This clause could be used to back a law protecting pregnant people from anti-abortion laws passed by states.

However, it is important to note that any law legalizing abortion nationwide would likely face challenges from anti-abortion activists and organizations. Additionally, there are political obstacles to passing such legislation, as well as potential constitutional challenges if the Supreme Court declares that a fetus has a right to life.

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