If the Supreme Court does decide to overturn Roe and leave abortion up to the states, would passing the Women's Health Protection Act allow Congress to pre-empt any state laws prohibiting abortion, or does the Tenth Amendment prevent this?

  • Could you link the relevant legislation here?
    – hszmv
    Commented Dec 7, 2021 at 13:35
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    @hszmv govinfo.gov/app/details/BILLS-117hr3755eh/summary Commented Dec 7, 2021 at 13:37
  • Item (25) in the text of the bill lays out the argument for constitutionality: "Congress has the authority to enact this Act to protect abortion services pursuant to (A) its powers under the commerce clause of section 8 of article I of the Constitution; (B) its powers under section 5 of the Fourteenth Amendment to the Constitution to enforce the provisions of section 1 of the Fourteenth Amendment; and (C) its powers under the necessary and proper clause of section 8 of Article I of the Constitution." ... Commented Dec 7, 2021 at 13:45
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    ... I'll leave the legal analysis to the real experts, but I'll note that the Commerce Clause is the everything-looks-like-a-nail tool of the federal government; and in a world where Roe v. Wade is overturned, the Fourteenth Amendment argument might evaporate (since Roe is based on that argument and it would no longer be good precedent.) The "necessary & proper" argument is a new one on me, though, and I look forward to seeing what the real experts say about it. Commented Dec 7, 2021 at 13:47
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    Presumably the commerce clause argument would be that if a state bans abortion then some women will cross state lines to seek an abortion, hence affecting inter-state commerce. Back in the days of the New Deal that would have been fine. Not so sure about these days. I think Congress would have to provide a rational basis argument that the law achieved something that the SCOTUS considered legitimate. Commented Dec 7, 2021 at 16:21

1 Answer 1


A ruling that overturns Roe would list specific reasons, so we'd have to see what the articulated principles are. The commerce clause is the obvious least-questionable weapon in the federal arsenal.

The key weakness in Roe which is under attack is the viability standard. Roe's description of viability is that

Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks

but that was judged according to technology of 50 years ago. If "viability" itself is swept away, the prospects are dimmer for any federal intervention. But if the court allows a state to determine that viability exists at 15 weeks, then we have a potentially chaotic situation where any state can pick a number (let's say that they hard-code 15 weeks as the lowest legal number but also setting 28 weeks as a legal upper limit).

This being an issue with clear interstate commerce implications, the Constitution gives Congress the sole power to regulate such commerce. Hence marijuana is technically illegal throughout the US (and was actually illegal until that changed), by dint of a federal law enabled by the commerce clause.

  • Thank you for your comment. I, for one, still do not understand why state law that makes marijuana legal doesn't trump federal law, because, while federal law generally pre-empts state law, I have read before that it can be superseded by state law if the latter gives its citizens more freedom. How has this conflict not been resolved yet, and could something similar happen with abortion? Commented Dec 8, 2021 at 8:52
  • @Tolga: The back of the federal marijuana law is broken. It would be unwise to draw any precedent from it.
    – Joshua
    Commented May 4, 2022 at 4:12
  • @Tolga It's an issue of setting ceilings or floors, but not necessarily both, and of how the federal government interfaces with state governments to keep things simple. It's too complicated to address all in a comment, and can probably be a good question of its own. Commented May 4, 2022 at 15:21

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