When
Dobbs v. Jackson Women’s Health
was first argued back in December, Democrats saw the writing on the wall. Having relied on courts to uphold the right to an abortion for nearly 50 years, some legislators on the Left began to consider undertaking an old-fashioned task: writing a law.
The call to “codify Roe v. Wade,” to write legislation enshrining the 1973 decision in the U.S. Code, grew stronger among Democrats after the draft opinion of Dobbs leaked in May. President Joe Biden has called on the Senate to make an exception to the filibuster rule, if necessary, so that they can write a law protecting the right to abortion at the federal level.
But it is too little, too late for pro-abortion members of Congress. Dobbs did not just tinker at the edges of cases stemming from Roe and Planned Parenthood v. Casey, as Chief Justice John Roberts wished it had. Instead, Justice Samuel Alito’s majority opinion restored the pre-Roe understanding of the Constitution’s relationship to abortion.
The problem for Democrats with that approach is not just that the law they proposed to codify Roe was too extreme even for members of their own caucus. It’s that the holding in Dobbs likely means that any attempt to impose a national law on abortion will also be held unconstitutional.
The central holding in Dobbs is that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.” For the generations of people used to a Congress that does not even consider the Constitution when venturing into a new area of life to regulate, this holding sounds narrow as to its subject matter. It just says that the court will not strike down the Mississippi law at issue in Dobbs, or any other law regulating abortion. That’s a big deal in itself and is the cause of the rage and indignation on the pro-abortion Left. But there is a more fundamental issue here: If the Constitution does not mention abortion, then Congress also has no power over abortion.
Democrats claim that Section 5 of the 14th Amendment gives them that power, but they are stuck in a pre-Dobbs mindset. A law passed by Congress to require states to allow abortion would fail for the same reason that a law imposed by the courts to do the same thing just failed. In our federal system, powers not delegated to the federal government belong to the states or to the people. That is implicit in the original frame of government and was made explicit in the 10th Amendment.
In the past, Congress has gotten around that limitation by claiming that the subject of its legislation “affected interstate commerce.” Since the 1942 case of Wickard v. Filburn (holding that the decision not to sell wheat was as much a part of interstate commerce as the act of selling it), Congress has believed there to be no real limit on what it could do. But beginning with United States v. Lopez in 1995 (holding that a gun-free school zone law did not have anything to do with commerce), the court has subtly narrowed Congress’s remit.
Will that narrowing continue? Will it apply to abortion? Nothing in Dobbs suggests otherwise.
Many legal scholars agree, including
Ilya Shapiro of the Manhattan Institute
. “I am skeptical,” he told me, “that a law nationalizing abortion protections, whether to the pre-Dobbs world of essentially no limits or some lesser rule, would withstand judicial scrutiny because it wouldn’t be a regulation of interstate commerce.”
Writing for the Wall Street Journal earlier this month,
Thomas Molony of Elon University made a similar point
: “With regard to abortion, the Constitution leaves the states with the same broad discretion they have to regulate other aspects of medical practice. Congress can’t use Section 5 to change that.”
Earlier case law adds credence to the idea. The one major piece of pro-life legislation Congress was ever able to pass was the Partial-Birth Abortion Ban Act of 2003. Signed into law by President George W. Bush, it severely limited a particularly grotesque form of late-term abortion. The Supreme Court upheld challenges to that law in Gonzales v. Carhart in 2005.
But Carhart was a continuation of the old precedents, even if it was a victory for the pro-life side of things. The majority opinion by Justice Anthony Kennedy analyzed the law according to the standard of whether it constituted an “undue burden” on the right to abortion — a phrase introduced to the case law in Planned Parenthood v. Casey. That standard is no longer a part of federal law.
What comes next is suggested by the concurrence to Carhart, in which Justice Clarence Thomas (joined by Justice Antonin Scalia) agreed with the decision to uphold the partial-birth ban but questioned whether Congress even had the power to pass it. Thomas wrote that “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court” because neither side of the case had raised the issue.
That makes sense: The pro-life argument in Carhart would have been that Congress did have the power, while the pro-choice side could not say otherwise without threatening the whole fiction underpinning federal abortion jurisprudence. But now that the Roe–Casey reasoning has been erased, the question will surely come before the court again.
A codification of Roe would likely fail on these grounds. The bad news for pro-life advocates is that the 2003 law would also quite possibly fall by the same logic. That is bad policy, but good law. Other arguments about the 14th Amendment’s breadth, including the idea that Section 5 might actually allow Congress to ban abortion nationwide, will likely also fall short in the Dobbs regime. Shapiro doubts it as well, calling it “an undertheorized constitutional provision” and noting that it is “unclear whether there would be five votes on the Supreme Court to uphold its use in this context.”
The reasoning for that is the mirror image of Dobbs: If it is true that nothing in our history and tradition suggests that anyone in 1868 understood the 14th Amendment to guarantee a right to abortion, no one then claimed it would require that act to be banned, either. Abortion and the 14th Amendment were unrelated and remain so. Neither would a claim of interstate commerce likely succeed in a court that is increasingly skeptical of broad claims on that point.
When the court in Dobbs returned abortion to the states, it overruled any federal role in abortion in the states. That means taking the good with the bad, and carrying the fight to the people, convincing them to outlaw the worst excesses of abortion even in the states where a more complete ban is politically impossible. That is federalism, and constitutional democracy, in action.
Kyle Sammin is editor-at-large at
Broad + Liberty
and the co-host of the Conservative Minds
podcast
. Follow him on Twitter @KyleSammin.
