constitutional-law us-supreme-court congress abortion tenth-amendment
Durability of Federal legislation protecting abortion rights in US
<p>Recently the Supreme Court of the United States, through <a href="https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization" rel="nofollow noreferrer">Dobbs</a>, has restored   the right of States to prohibit abortion.  Supporters of reproductive freedoms have since renewed calls upon Congress to enshrine  these freedoms in federal law.</p>
<p>Proponents of such calls on Congress seem to believe that the <a href="https://en.wikipedia.org/wiki/Supremacy_Clause" rel="nofollow noreferrer">Supremacy Clause</a> supports the power of Congress to limit the relevant rights of States, with the same effect as  the long-standing ruling of <a href="https://en.wikipedia.org/wiki/Roe_v._Wade" rel="nofollow noreferrer">Roe</a>. However, such legislation, like all other, may be subjected to judicial review, unlike Roe, which was rather a product of judicial review.</p>
<p>Given   revelations through written opinion about the personal perspectives of the current justices, do States have a compelling chance of having  such legislation overturned, for example by virtue of the <a href="https://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_8:_Powers_of_Congress" rel="nofollow noreferrer">Article 1</a> limitations on Congressional power or the <a href="https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Tenth Amendment</a> protection of States' rights?</p>

<p>The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for <strong>Constitutional</strong> federal laws. If Congress passed a law seeking to restore the effect of the now overruled <em>Roe</em> decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned.</p>
<p>One supposes that the members of the majority in <em>Dobbs</em> would be reluctant to see that decision superseded by a new Federal law.  One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so.</p>
<p>Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress.</p>
<p>As a political matter, I doubt that the current Congress will pass such a law.</p>

<p>The most likely path for federal preemption would be by analogy and reference to federal health-related laws (Obamacare, HIPAA, Medicare and Medicaid, HRRP, indirectly the National Research Act). But unlike immigration or interstate commerce, there is no realistic prospect for carving out &quot;healthcare&quot; as an exclusively federal concern. Without that, and since the power of the purse cannot be used to dragoon the states, there is no credible path for a federal statutory re-instatement of Roe.</p>
<p><a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text" rel="noreferrer">This proposal</a> purports to derive the power to federally legalize abortion from the commerce clause, and relies on Roe as being established law (the power to enforce Roe equally across states). It thus lacks the language that would be required to <em>make</em> this be an exclusive federal carve-out.</p>
<p><a href="https://constitution.congress.gov/resources/unconstitutional-laws/" rel="noreferrer">This table</a> would be useful in assessing the viablity of a federal law, and the rationale behind declaring it to be a federal matter (a list of laws overturned by SCOTUS on constitutional grounds). An example is <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep529/usrep529598/usrep529598.pdf" rel="noreferrer">US v. Morrison</a>, involving a federal law which claimed Commerce Clause authority (federal civil remedy for the victims of gender-motivated
violence). SCOTUS held that the law could not be sustained under the Commerce Clause, citing <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep514/usrep514549/usrep514549.pdf" rel="noreferrer">US v. Lopez</a>, 514 US 549, which also invalidated a federal law restricting possession of a firearm in the vicinity of a school, again citing the Commerce Clause. These rulings partially establish a framework for properly invoking the Commerce Clause. One can, however, distinguish those cases from the hypothetical case because the federal law involved clearly and universally criminal acts (rather than defining an act as &quot;not criminal&quot;)</p>
<p>Another relevant case where a Commerce Clause justification was rejected include <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep426/usrep426833/usrep426833.pdf" rel="noreferrer">Nat'l League of Cities v. Usery</a>, but still, that ruling could be distinguished because it involved a law forcing states to make &quot;choices as to how
essential decisions regarding the conduct of integral governmental
functions are to be made&quot;.</p>

<p>The relevant portion of the <em>Dobbs</em> decision states:</p>
<blockquote>
<p>We must now decide what standard will govern if state abortion
regulations undergo constitutional challenge and whether the law
before us satisfies the appropriate standard.</p>
<p>A</p>
<p>Under our precedents, rational-basis review is the appropriate
standard for such challenges. As we have explained, procuring an
abortion is not a fundamental constitutional right because such a
right has no basis in the Constitution’s text or in our Nation’s
history. See supra, at 8–39.</p>
<p>It follows that the States may regulate abortion for legitimate
reasons, and when such regulations are challenged under the
Constitution, courts cannot “substitute their social and economic
beliefs for the judgment of legislative bodies.” Ferguson, 372 U. S.,
at 729–730; see also Dandridge v. Williams, 397 U. S. 471, 484–486
(1970); United States v. Carolene Products Co., 304 U. S. 144, 152
(1938). That respect for a legislature’s judgment applies even when
the laws at issue concern matters of great social significance and
moral substance. See, e.g., Board of Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 365–368 (2001) (“treatment of the disabled”);
Glucksberg, 521 U. S., at 728 (“assisted suicide”); San Antonio
Independent School Dist. v. Rodriguez, 411 U. S. 1, 32–35, 55 (1973)
(“financing public education”).</p>
<p>A law regulating abortion, like other health and welfare laws, is
entitled to a “strong presumption of validity.” Heller v. Doe, 509 U.
S. 312, 319 (1993). It must be sustained if there is a rational basis
on which the legislature could have thought that it would serve
legitimate state interests. Id., at 320; FCC v. Beach Communications,
Inc., 508 U. S.  307, 313 (1993); New Orleans v. Dukes, 427 U. S. 297,
303 (1976) (per curiam); Williamson v. Lee Optical of Okla., Inc., 348
U. S. 483, 491 (1955). These legitimate interests include respect for
and preservation of prenatal life at all stages of development,
Gonzales, 550 U. S., at 157–158; the protection of maternal health and
safety; the elimination of particularly gruesome or barbaric medical
procedures; the preservation of the integrity of the medical
profession; the mitigation of fetal pain; and the prevention of
discrimination on the basis of race, sex, or disability. See id., at
156– 157; Roe, 410 U. S., at 150; cf. Glucksberg, 521 U. S., at 728–
731 (identifying similar interests).</p>
<p>B</p>
<p>These legitimate interests justify Mississippi’s Gestational Age Act.
Except “in a medical emergency or in the case of a severe fetal
abnormality,” the statute prohibits abortion “if the probable
gestational age of the unborn human being has been determined to be
greater than fifteen (15) weeks.” Miss. Code Ann. §41–41–191(4)(b).
The Mississippi Legislature’s findings recount the stages of “human
prenatal development” and assert the State’s interest in “protecting
the life of the unborn.” §2(b)(i). The legislature also found that
abortions performed after 15 weeks typically use the dilation and
evacuation procedure, and the legislature found the use of this
procedure “for nontherapeutic or elective reasons [to be] a barbaric
practice, dangerous for the maternal patient, and demeaning to the
medical profession.” §2(b)(i)(8); see also Gonzales, 550 U. S., at
135–143 (describing such procedures). These legitimate interests
provide a rational basis for the Gestational Age Act, and it follows
that respondents’ constitutional challenge must fail.</p>
<p>VII</p>
<p>We end this opinion where we began. Abortion presents  a profound
moral question. The Constitution does not prohibit the citizens of
each State from regulating or prohibiting abortion. Roe and Casey
arrogated that authority. We now overrule those decisions and return
that authority to the people and their elected representatives.</p>
</blockquote>
<p>This clearly authorizes state legislation on the subject, and the earlier portion of the opinion clearly states that the U.S. Constitution does not give rise to a self-executing right to choose as a matter of substantive due process.</p>
<p>But, the <em>Dobbs</em> opinion does not really explore the boundaries of Congressional action to regulate abortion, under grounds such as the Commerce Clause, or the Enforcement authority of the 13th and 14th Amendments, although surely <em>Dobbs</em> contemplates that Congress could legislate with respect to territories of the United States that are not part of any U.S. state if it wished to do so in lieu of state law.</p>
<p>In modern U.S. history, the commerce clause authority of Congress has been almost unlimited, but as another answer notes, there has been conservative pushback against the general rule that Congress can enact any legislation, for example, in <em>US v. Lopez</em>, 514 US 549, and more recently, with respect to certain provisions of the Affordable Care Act (i.e. Obamacare).</p>
<p>It is hard to know how that would come out and the exact details and structure of such a law would matter. A law limiting the extraterritorial jurisdiction of U.S. states trying to regulate abortion would probably be upheld under the commerce clause. On the other hand the constitutionality of a law simply legalizing abortion in every U.S. state would be harder to determine.</p>

<p>In <a href="https://www.supremecourt.gov/opinions/06pdf/05-380.pdf" rel="nofollow noreferrer">GONZALES v CARHART</a> the US Supreme Court upheld the <a href="https://www.govinfo.gov/content/pkg/PLAW-108publ105/pdf/PLAW-108publ105.pdf" rel="nofollow noreferrer">Partial-Birth Abortion Ban Act
of 2003</a> which said (in part):</p>
<blockquote>
<p>Any physician who, in or affecting interstate or foreign
commerce, knowingly performs a partial-birth abortion and thereby
kills a human fetus shall be fined under this title or imprisoned
not more than 2 years, or both.</p>
</blockquote>
<p>So Justices Thomas, Roberts, and Alito have permitted federal abortion legislation in the the past.</p>
