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Recently the Supreme Court of the United States, through Dobbs, 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.

Proponents of such calls on Congress seem to consider the Supremacy Clause as providing Congressional power to constrain the relevant rights of States, with the same effect as the long-standing ruling of Roe. However, such legislation, like all other, may be subjected to judicial review, unlike Roe, which was rather a product of judicial review.

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 Article 1 limitations on Congressional power or the Tenth Amendment protection of States' rights?

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4 Answers 4

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The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe 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.

One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law.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.

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.

As a political matter, I doubt that the current Congress will pass such a law.

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    Right. The Supremacy Clause, on the surface, gives Congress the power to supersede the will of the States, but State's rights constrains this power by the enumeration in Article I.
    – epl
    Jun 27 at 21:14
  • @epl Well sort of. The US federal government is one of specified powers. It can only act within the limits the constitution sets, but within those limits is is supreme. Jun 27 at 23:40
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    Your comment appears to me as a full concurrence. Does it address a flaw in my statement?
    – epl
    Jun 27 at 23:45
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    Once substantive liberty is vacated from Due Process, what value is left as relevant respecting enforcement?
    – epl
    Jun 28 at 0:13
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    @epi That "privacy rights" from the 14th were rules out doe not mean no other rights derived from the 14th might not be asserted n a new law from Congress. The 14th covers a lot of ground. But this is all speculation. Jun 28 at 0:20
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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 "healthcare" 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.

This proposal 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 make this be an exclusive federal carve-out.

This table 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 US v. Morrison, 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 US v. Lopez, 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 "not criminal")

Another relevant case where a Commerce Clause justification was rejected include Nat'l League of Cities v. Usery, but still, that ruling could be distinguished because it involved a law forcing states to make "choices as to how essential decisions regarding the conduct of integral governmental functions are to be made".

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    The President, Sen. Warren, and Rep. Ocasio-Cortez, among many others, have expressed hope that success for their party in the midterm elections might make realistic the passage of federal legislation. Putting aside politics, is it unrealistic to conceive that such legislation would be sustained through inevitable challenges in the Court?
    – epl
    Jun 27 at 15:54
  • There have been interesting cases concerning the Commerce Clause. For example, I recall that during the Civil Rights Movement, the courts affirmed federal power to regulate activities in restaurants, simply because as a practical matter every restaurant in the country obtains supplies originating out of state.
    – epl
    Jun 27 at 15:58
  • The Commerce Clause is the most obvious hook. Just inserting the express "affecting interstate commerce" would not grant solid federal authority – a law could easily be passed that just says "we hereby say so", but it would be subject to being overturned in court. I assume your question is asking for an overturn-proof law.
    – user6726
    Jun 27 at 16:13
  • Not necessarily "overturn proof", which I think is not realistic even in principle, since the behavior of justices, as particular individuals or a class, is not deterministic. I think the spirit of the question is in a certain respect the opposite, whether a bill is conceivable which is not guaranteed to be tossed, based on the opinion previously given by the nine individuals central to the ultimate decision.
    – epl
    Jun 27 at 16:32
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    I don't think that the law is anywhere near remotely clear on the authority to act and there are good arguments that it does. It doesn't have to be an exclusive federal matter for Congress to act, merely one with concurrent authority.
    – ohwilleke
    Jun 27 at 22:14
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The relevant portion of the Dobbs decision states:

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.

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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.

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”).

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).

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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.

VII

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.

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.

But, the Dobbs 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 Dobbs 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.

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 US v. Lopez, 514 US 549, and more recently, with respect to certain provisions of the Affordable Care Act (i.e. Obamacare).

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.

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    I'd also note that the Feds could open "Federal abortion centers" in any state, run by a Federal agency. States would be powerless to shut these down, just like states can't regulate what happens on military bases or national parks. Jun 27 at 23:38
  • Does the omission, in the majority opinion. of any mention of the powers of Congress, more likely represent a tacit admission that Congress may in principle supersede the laws of the States, or simply reflect restraint for ruling outside the scope of the immediate case?
    – epl
    Jun 27 at 23:48
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    @epl It more likely reflect the fact that it is not before the court. I'm sure that some Justices in the majority would like to preclude that and so they did not sloppily say that the state or Congress may enact legislation. But that issue is premature in this case.
    – ohwilleke
    Jun 28 at 0:46
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In GONZALES v CARHART the US Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 which said (in part):

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.

So Justices Thomas, Roberts, and Alito have permitted federal abortion legislation in the the past.

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    That still leaves wriggle room for them to assert that allow the federal government can ban abortion, it can't legalize it. Jun 28 at 3:25
  • @Acccumulation it's hard to imagine such an irreflexive power being taken seriously. It would be equivalent to Congress passing Prohibition, but then not being able to lift it, because it only has the power to ban alcohol, not to legalize it. Generally speaking, if the federal gov't has the legal power to ban an activity, it also has the legal power to protect it. Jun 28 at 10:56
  • @LawnmowerMan the prohibition example isn’t ideal though since both the ban and its repeal were accomplished through amendments, not legislation Jun 28 at 14:36
  • @LawnmowerMan Legalizing something means banning state legislatures from enacting laws banning it. It's not clear the federal government has that power over the states. Jun 28 at 15:49
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    @LawnmowerMan Going from "This argument is absurd" to "people on the Right wouldn't take this argument seriously" seems like a non sequitur to me. And Prohibition isn't a good analogy, as the federal government has not, in fact, legalized alcohol, it has simply removed the federal ban on it. The states are still free to pass state laws against alcohol. Jun 29 at 1:00

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