11

Democrats in Congress have mentioned codifying Roe v. Wade into law (whatever that means). However, I was under the impression that Congress couldn't overturn a Supreme Court decision on a Constitutional question (in this case, the question of abortion rights in the US). The overturning Dobbs decision, therefore, remains intact and there's nothing Congress can do, short of "packing the court."

11
  • 7
    Presumably, you know that the executive branch enforces laws and the legislative branch makes then, so you don't mean "enforce".
    – user6726
    Sep 25, 2022 at 15:37
  • 2
    @user6726 eight amendments explicitly grant to Congress the power to enforce their provisions by passing legislation, so the meaning of "enforce" is apparently broader than you think.
    – phoog
    Sep 25, 2022 at 21:27
  • 1
    Worth mentioning that this supreme Court majority has yet to rule on whether a given federal law about abortion would violate the Constitution. It is possible that they might.
    – Davislor
    Sep 26, 2022 at 8:00
  • 2
    @Davislor but we are not likely to find out as it doesn't seem likely that such a law will be passed.
    – phoog
    Sep 26, 2022 at 13:39
  • @phoog Both parties say that they’ll pass such a law at the first opportunity.
    – Davislor
    Sep 26, 2022 at 18:42

4 Answers 4

5

Overview

The question reads:

I was under the impression that Congress couldn't overturn a Supreme Court decision on a Constitutional question

That is, in general, correct.

The overturning Dobbs decision, therefore, remains intact and there's nothing Congress can do, short of "packing the court."

That does not follow. There are a number of steps that Congress could take, if it chose to, that would have the effect of providing abortion access to people in the US, in states whose legislatures have voted to restrict or ban it. Whether Congress will take any of these actions is not clear, that is a political question.

Passage of an Enforcement Law

Section 5 of the 14th Amendment reads:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

The scope of power that Congress has under this provision is wide, and has been little used. Congress could pass a law declaring that certain abortion restrictions violate the rights granted under the amendment, and prohibiting states from enforcing such restrictions. Such a law would be subject to court challenge, and whether it would be held to be a valid exercise of the power of Congress is uncertain. But Congress could try this route.

Passage of a Law Restricting the States on Other Grounds

Congress could pass a law regulating abortion, thereby preempting state laws on the subject that conflicted with the new federal law. Such a law would only be valid if it were within the powers granted to the Federal Government. There has been debate on which, if any, of those powers would permit such a law. Given the degree of regulation of medical issues already permitted under such laws as HIPPA, the ADA, and the acts establishing Medicare, and the extensive scope of Commerce Clause regulation during the past 60 years and more, such a law might be held to be within the powers of Congress.

Providing Access Within Federal Facilities

Article I, section 8 of the US Constitution reads, in pertinent part:

Congress shall have the power...

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings [emphasis added]

This means that Congress may, by law, set the rules for all activities in federal facilities. Congress could establish abortion clinics within federal facilities such as military bases, national parks, or federal office buildings, if it decided to. Under the Supremacy Clause, such laws would override any conflicting state laws.

Jurisdiction Stripping

Article II section 2 provides in pertinent part:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [emphasis added]

Congress can, under this provision, remove categories of cases from the reach of the Supreme Court. This is known as "jurisdiction stripping" This has not often been done, but the power is clear, and has been upheld in the past, for example in the case of Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). Such a law could be used to insulate laws discussed above from Supreme Court review.

Caution

It should be noted that all the above are things that Congress could do, or might be able to do, to extend abortion access in states that have passed laws banning or restricting abortion. Congress has not passed laws doing any of these things, and it may never do so. If Congress took any such actions, court challenges would be likely, and there is no telling in advance how such challenges would be resolved.

4
  • "Easy access to abortions on all military bases" would cause a log of confusion in a specific crowd
    – Hobbamok
    Sep 26, 2022 at 9:10
  • You do realize that Ex parte McCardle is an error about as bad as Plessy vs Ferguson, but its circumstances are so difficult to recreate that it probably won't ever actually be overturned right?
    – Joshua
    Sep 27, 2022 at 3:42
  • IANAL, but I strongly suspect the second option is Congress' best choice, because it seems to me that abortion is a purely intrastate affair that is only tangentially related to interstate commerce
    – moonman239
    Sep 27, 2022 at 19:46
  • Like, a case can easily be made that blocking an interstate highway or blowing up an airplane is an activity Congress can prohibit, because these are both used to transport people and goods across state lines.
    – moonman239
    Sep 27, 2022 at 19:48
66

They can't overturn the decision; but they don't have to.

The holding in Dobbs was that the US Constitution does not provide a right to an abortion, and so a state law prohibiting abortions is not unconstitutional. Congress can't "overturn" it in the sense that they can't make the Constitution provide such a right, short of a constitutional amendment.

But that in itself doesn't stop them from providing such a right in other ways, e.g. through ordinary legislation. Under the Supremacy Clause, such a law would supersede any state bans; provided that it falls within the scope of Congress's enumerated powers, which assertion would itself probably be challenged in court. If it's within their legislative power, then there's no conflict with Dobbs.

To give a more mundane example, nobody thinks that there is a constitutional right to have an airline ticket refunded within 24 hours of purchase. If the Supreme Court ever had occasion to rule on the question, they would surely hold that nothing in the US Constitution says that people have this right. But Congress does have the power, under the Commerce Clause, to pass legislation that confers such a right on consumers. They have done so, and this law would not in any way conflict with the aforementioned hypothetical Supreme Court ruling.

15
  • 16
    A non-hypothetical case (albeit one dealing only with statutory interpretation, and not the constitution) is the Lily Ledbetter law. Congress passed a law allowing people to sue for sex discrimination, but included a statute of limitations. A woman sued under the law, but SCOTUS ruled that the statute of limitations prohibited her suit. So Congress passed a new version of the law with a less restrictive statute of limitations. This didn't "overrule" SCOTUS's interpretation of the previous law, it created a new law. Sep 25, 2022 at 0:40
  • 8
    It is perhaps worth mentioning the asymmetry with Roe itself. Under Roe. Congress could not have forbidden abortion. Dobbs is a bit of a special case in that it explicitly unshackled the legislatures and left them free to rule either way.
    – Josiah
    Sep 25, 2022 at 8:05
  • 10
    @vsz I think you're misunderstanding either this answer or the Dobbs decision (or possibly both?) Dobbs didn't rule that abortion is banned or that Congress can't ban state laws restricting it. It simply ruled that the Constitution doesn't ban state laws restricting it (because, well, it doesn't.) This returned the matter to be handled via normal democratic processes in Congress and/or state legislatures, where legislation is supposed to happen. Neither Congress banning abortion nor banning state restrictions of it would "overturn or circumvent" Dobbs. That's exactly what Dobbs allows.
    – reirab
    Sep 26, 2022 at 8:18
  • 5
    @NateEldredge I think (from my side of the Atlantic) that Roe meant that individuals thought they had the constitutional right, but Dobbs corrected that misinterpretation of the law. The Dobbs judgement appears to be a comprehensive take-down of the reasoning behind the previous decision. The right hasn't been stripped, because it was never really there in the first place. Sep 26, 2022 at 12:29
  • 5
    @reirab "it wasn't there to begin with": the court has found implicit rights in the constitution, including the right to privacy on which Roe was based. The only reason that right isn't "in the constitution" is that the Dobbs court has ruled it so. For 50 years or so, the right was in the constitution, albeit implicitly.
    – phoog
    Sep 27, 2022 at 6:10
2

A court has jurisdiction to impose judgments upon the parties to cases before it. Higher-court judges generally publish advice on the principles they will use when reaching their decisions, so that lower courts can reach the same decisions themselves directly, without every case having to be appealed to the higher court. If part of a statute is written in a manner which could be interpreted as favoring either party, a higher court will, as part of its decision making process, say how it interpreted the ambiguous parts of the statute. If the court interprets a statute in a manner consistent with what it was intended to say (or at least consistent with what those currently in the legislature would want it to say), the legislature can simply allow the legislation to remain as it is, despite the ambiguity. If the court interprets the statute in a manner which is reasonable, but which does not coincide with what the legislature wanted, then the legislature can change the law to better state their intention.

Suppose there is a "guess the number of the jellybeans in a jar" contest, and after all guesses are submitted, including guesses for 998, 999, and 1000, it is discovered that the jar contains 499 whole red jellybeans along with a red half-jellybean, and 499 whole blue jellybeans along with a blue half-jellybean. If there is nothing in the rules about how partial jellybeans should be counted, the entity responsible for judging the contest would have the authority to award the prize to either the person who said 998, the one who said 999, or the one who said 1000. The judge would be entitled to decide whether half jellybeans should be excluded from the count, should count as whole jellybeans, or should be counted numerically as half a jellybean with the overall result rounded to the nearest bean, and such decision would be final with respect to that particular contest outcome. On the other hand, no matter which counting method the judge chose, there would be nothing improper about the sponsors of the contest publishing rules announcing that in all of their future contests different rules would be applied.

4
  • The description of statutory interpretation is not wrong, but the question is about a matter of constructional interpretation, and I don't think this answer really addresses the issue in the question. Sep 26, 2022 at 16:35
  • @DavidSiegel: If Congress would have the authority to write rules in a manner that would yield a certain outcome if a future case were to arise with a certain set of facts in the absence of any court precedent to the contrary, the fact the Supreme Court had issued a contrary decision prior to them writing such rules wouldn't change that. Conversely, if Congress would lack such authority, the Court could neither give it nor take it away.
    – supercat
    Sep 26, 2022 at 16:49
  • The Supreme Court can rule that Congress does or does not have power to legislate in a given area, thus effectively expanding or contracting the power of Congress. Consider the huge increase in the reach of the commence clause after Wickard v. Filburn, 317 U.S. 111 (1942) Sep 26, 2022 at 17:15
  • @DavidSiegel: The Court has the authority to say that it will overturn any conviction of anyone under statutes meeting certain criteria, and such an announcement would generally undermine the perceived legitimacy of such statutes. If the Court were to make such an announcement without offering any remotely-credible justification, however, nothing in the Constitution would give it any authority beyond the parties involved in the case. The Constitution assigns a priority ranking for what writings constitute "the supreme Law of the Land", and judicial decisions appear nowhere on that list.
    – supercat
    Sep 26, 2022 at 17:25
-1

The method by which Congress can overturn a SCOTUS decision is to amend the Constitution, which requires a good number of state legislatures to come to agreement. An amendment to recognize the right to Abortion could, in theory could be made by these methods. However, it's easier said than done. Similar amendments have been made (Notably, the 13th Amendment which banned Slavery save for hard labor punishments, the 18 amendment (prohibition). In the former two cases, it moved the ability to legislate on the issue from the states to the feds. In the later, it reversed this removal.

The 13th Amendment overturned numerous prior SCOTUS rulings because now that Congress had the ability to make national laws on slavery, it instantly overturned several regrettable decisions SCOTUS made on the issues.

The 14th Amendment was to patch a sort of loophole that existed because of the 9th and 10th amendment, forcing states to comply with the rights protected in the Federal Constitution (Without it, Congress might be limited by restrictions in the Bill of Rights, but the states were not so limited by the U.S. Constitution and states could make laws that violated the Bill of Rights).

3
  • 1
    -1 The 13th did not simply allow Congress to abolish slavery, it directly abolished all slavery excerpt as a criminal sentence. Congress could not thereafter authorize slavery. the 14th was not a "patch" i would say, rather it established a national citizenship. It was later used to apply several Bill of Rights provisions to the states, starting in the 1920s. Sep 26, 2022 at 16:32
  • The 13th amendment gives Congress power to legislate to enforce the abolishment, taking it from the states, which up until it's passage had the power to decide for themselves. The necessary legal changes were the move of who can write the laws. Compare to the 18th Amendment, which enacted prohibition, but Congress still needed to pass the Volstead Act, which dealt with enforcing the ban. The 14th Amendment did a number of things, but the goal was to make sure that states wouldn't circumvent the 13th Amendment by claiming the constitution did not apply to the states internally.
    – hszmv
    Sep 26, 2022 at 16:48
  • 1
    @hszmv: The 13th Amendment making slavery illegal would have certain immediate effects even in the absence of legislation, such as voiding any state laws that might otherwise punish people who help escaped slaves. It would not, however, authorize the federal government to impose any kind of prison sentence or other penalty upon someone who forcibly holds slaves, since the 13th Amendment itself doesn't prescribe any such penalties. The question of what penalties should be imposed was left to the legislature.
    – supercat
    Sep 26, 2022 at 17:37

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .