Abortion Law: Constitutional Conundrum Or Clear-Cut Case?

The question of whether a national abortion law would be constitutional is a highly contested topic in the United States. In 2022, the Supreme Court's decision to overturn Roe v. Wade, the 1973 landmark case that made abortion a fundamental right nationwide, sparked calls for a federal law codifying Roe. However, the passage of such a law has faced significant political and legal challenges. While supporters of a Roe statute argue that the authority lies in the 14th Amendment, opponents cite the Tenth Amendment, which mandates that all powers not delegated to the federal government are reserved for the states. Additionally, the Supreme Court has distinguished between legislation to enforce constitutional rights and legislation to define those rights, asserting that defining constitutional rights is the job of the courts. Other arguments against a national abortion law include the federalism argument, which states that codifying Roe does not fall under Congress's enumerated powers, and the interstate commerce argument, which questions whether abortion is an economic act and thus regulatable under the legislative body's interstate commerce powers.

The Tenth Amendment

In the context of abortion laws, the Tenth Amendment has been cited by opponents of abortion rights to argue that Congress would exceed its scope of power by passing a law protecting abortion access. They argue that codifying Roe v. Wade does not fall under one of Congress's enumerated powers mentioned in Article I of the US Constitution or the 14th Amendment.

However, supporters of abortion rights argue that Congress does have the authority to intervene under the 14th Amendment to stop a state from violating constitutionally guaranteed rights. They also argue that abortion can be regulated under the Commerce Clause of Article I, as it involves people paying to receive abortions, which has an economic impact.

The Commerce Clause

The Partial-Birth Abortion Ban Act, for example, was passed pursuant to the Commerce Clause, suggesting that abortion can be reached through this clause. However, one obstacle to this argument is the claim that abortion is not an economic act and, therefore, may not be regulatable under the legislative body's interstate commerce powers.

In the 1995 case of *United States v. Lopez*, the Supreme Court held that the Gun-Free School Zones Act of 1990 was unconstitutional as it exceeded the scope of the commerce power. This case set a precedent that could be used to challenge the constitutionality of a national abortion law based on the Commerce Clause.

In addition, in the 2012 case of *National Federation of Independent Business v. Sebelius*, the Supreme Court held that Congress had exceeded its power under the Commerce Clause in the Affordable Care Act (Obamacare). This case further demonstrated the Court's restrictive view of Congress's power under the Commerce Clause.

Despite these challenges, the Commerce Clause remains a potential avenue for pro-choice lawmakers to justify the constitutionality of a law legalizing abortion at the federal level.

The 14th Amendment

> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In 1973, the US Supreme Court ruled in Roe v. Wade that the 14th Amendment protects a woman's decision to terminate her pregnancy. The Court's decision dramatically increased judicial oversight of legislation, striking down aspects of abortion-related laws in numerous states, the District of Columbia, and the territories. The Court's ruling was based on the conclusion that the right of privacy "embraces a woman's decision to carry a pregnancy to term".

The Roe Court ruled that states may not categorically proscribe abortions by making their performance a crime. The Court held that because the right of privacy is a fundamental right, only a compelling state interest could justify its limitation by a state. Thus, while it recognised the legitimacy of a state's interest in protecting maternal health and preserving foetal life, the Court held that these interests were insufficient to justify an absolute ban on abortions.

The Supreme Court's ruling in Roe v. Wade was based on the conclusion that the 14th Amendment's concept of personal liberty and restrictions upon state action encompassed a woman's decision to carry a pregnancy to term. This decision was overruled, however, in 2022, by Dobbs v. Jackson Women's Health Organisation, which held that there is no constitutional right to abortion.

Despite this recent ruling, the Center for Reproductive Rights argues that the right to reproductive autonomy is deeply grounded in the US Constitution and is about much more than Roe and the right to abortion. They argue that multiple legal rights establish that government restrictions on reproductive autonomy constitute sex, race, and economic discrimination, and that such restrictions can deny people their lives and their ability to live their lives with dignity.

The 14th Amendment's Enforcement Clause

The Enforcement Clause states:

> "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

This clause was added to the 14th Amendment to address concerns about the balance of power between state and federal governments. It was intended to give Congress the ability to correct or prevent state laws that conflict with the principles of the amendment. The scope of this power has been a subject of debate and has been interpreted differently by the Supreme Court over time.

Initially, the Supreme Court interpreted Congress's authority under the Enforcement Clause broadly. In Ex parte Virginia (1879), the Court declared that Congress had the power to:

> "...secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power."

However, subsequent decisions have narrowed the interpretation of Congress's power under the Enforcement Clause. For example, in The Civil Rights Cases (1882), the Supreme Court struck down provisions of the Civil Rights Act of 1875 that outlawed racial discrimination in private transactions, noting that the 14th Amendment limits only the power of the states. The Court held that the Enforcement Clause does not authorize Congress to create a code of municipal law for the regulation of private rights but rather to provide modes of redress against the operation of state laws and the actions of state officers.

In more recent cases, the Supreme Court has further limited Congress's power under the Enforcement Clause. In City of Boerne v. Flores (1997), the Court held that Congress cannot create new rights or expand the scope of existing rights under this clause. Instead, Congress is limited to providing remedies for rights already recognized by the courts, and these remedies must be narrowly tailored and proportional to the constitutional violation.

Despite these limitations, the Enforcement Clause still provides Congress with significant power to enforce and expand upon the rights guaranteed by the 14th Amendment. It is often cited as a potential source of authority for a national abortion law, as it allows Congress to intervene when state laws violate constitutionally guaranteed rights. However, as previously mentioned, the Supreme Court has ruled that there is no constitutional right to abortion, and Congress cannot use the Enforcement Clause to create such a right.

Dobbs v. Jackson Women's Health Organization

In a divided opinion, the Court upheld the Mississippi law and overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court concluded that the Constitution does not protect the right to an abortion and returned the issue of abortion regulation to elected branches and state governments.

The Court's decision was based on the interpretation that the Constitution makes no reference to abortion and that no such right is implicitly protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment. This clause has been interpreted to guarantee certain rights not explicitly mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."

The Court found that the right to abortion does not meet these criteria, as abortion was criminalized and widely prohibited in state laws until the latter part of the 20th century. The Court's ruling emphasized that its decision concerned only the constitutional right to abortion and no other right, and that the authority to regulate abortion now rests with state governments and their elected representatives.

The decision in Dobbs v. Jackson Women's Health Organization has significant implications for abortion access and women's reproductive rights across the United States, with state governments now having the power to regulate or prohibit abortions.

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