President Biden last week urged the U.S. Senate to abolish the filibuster so that Congress can “codify Roe v. Wade.” But the filibuster’s 60-vote requirement isn’t the most serious impediment to the Women’s Health Protection Act, a Democratic bill that passed the House, or for that matter to Republican Sen.
Susan Collins’s
more modest Reproductive Choice Act. The most serious impediment is the Constitution.
The Constitution is silent on abortion, as the Supreme Court held last month in Dobbs v. Jackson Women’s Health Organization. But it speaks clearly about the limits on congressional power. The most recent version of the Women’s Health Protection Act doesn’t cite any source of congressional authority, but earlier versions pointed to Section 5 of the 14th Amendment and Article I’s Commerce Clause.
Both are dead ends. Section 5 gives Congress the power to enforce the 14th Amendment’s Due Process and Equal Protection clauses. But in City of Boerne v. Flores (1997), the court emphasized that Section 5 wouldn’t permit Congress to alter the 14th Amendment’s substance. The court found that Section 5 wouldn’t permit Congress to impose on states the Religious Freedom Restoration Act’s rigorous test for regulations infringing on religious exercise.
The same rationale precludes Congress from using Section 5 to breathe life back into Roe. In overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the justices held that the Due Process Clause doesn’t guarantee women the right to choose abortion. Dobbs effectively foreclosed Equal Protection challenges to abortion restrictions as well. Thus, 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.
The Commerce Clause likewise is of no avail. To be sure, the court has interpreted Congress’s power to regulate interstate commerce broadly. The justices have upheld, among other things, federal regulation of the price of milk produced and sold exclusively within a single state and restrictions on the production of wheat for a farmer’s own use.
But the Commerce Clause has limits. In National Federation of Independent Business v. Sebelius (2012), five justices determined that Congress can’t use its commerce power to compel individuals to engage in commerce. Congress similarly can’t force a state to allow a healthcare provider to offer abortion services on congressional terms. In the License Tax Cases (1866), the court emphasized that “the power to authorize a business within a State is plainly repugnant to the exclusive power of the State over the same subject.” States get to decide whether and to what extent they permit abortion within their borders.
In Linder v. U.S. (1925), the court stated that “direct control of medical practice in the states is beyond the power of the federal government.” In Gonzales v. Raich (2005), the court held that Congress could regulate the practice of medicine indirectly “as an essential part of a larger regulation” designed to combat drug trafficking, but these abortion bills attempt to regulate medical practice directly.
Federal abortion-rights legislation would…
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