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Can Congress resurrect Roe if it’s overturned? Well, it could try.

The Supreme Court might well strike that down, too.

- May 4, 2022

After a bombshell Supreme Court leak, it appears that a majority of the justices are preparing to overrule Roe v. Wade, the 1973 decision that protected a woman’s right to choose an abortion. With the prospect of losing Roe becoming real, abortion rights activists and allied elected officials are vowing to use whatever means they have to protect abortion.

To that end, Democrats in Congress are calling on their colleagues to “codify Roe” in federal law. The Women’s Health Protection Act (WHPA) introduced by Rep. Judy Chu (D-Calif.) in June 2021 would do just that. Here’s what you need to know.

The Women’s Health Protection Act defines abortion as interstate commerce

The WHPA announces as its purpose “to put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.”

By framing the right to abortion as a matter of access to abortion services, the WHPA is taking a page from another major civil rights bill, the Civil Rights Act of 1964. When Congress sought to enforce anti-discrimination requirements in public accommodations such as hotels, public transit and restaurants, it grounded its authority to do so in the Commerce Clause. This clause gives Congress the power “to regulate commerce with foreign nations, and among the several states and with the Indian tribes.”

Using this power, Congress was able to enforce anti-discrimination laws and desegregation decrees on any establishment that “affect[ed]” interstate commerce — that is, if a business’s products had ever “moved in commerce,” if it served interstate travelers, or if any portion of its operations involved “trade, traffic, commerce, transportation, or communication” between the states or with any foreign country.

When the Civil Rights Act of 1964 came before the Supreme Court, even the liberal justices noted the awkwardness of arguing over whether hamburger meat crossing state lines meant a restaurant such as Ollie’s BBQ in Alabama had to allow Black patrons to sit at the counter, or whether an Atlanta hotel near an interstate highway had to allow Black guests because its travelers moved between states. Still, the Supreme Court unanimously upheld the Civil Rights Act, giving the green light to Congress to use its commerce power to enforce civil rights.

This time around, Congress would again define access to abortion as a case of interstate commerce. People travel across state lines to procure abortion services; medical equipment that provide abortions all moves in interstate commerce; and licensing, training and education for abortion providers all involve interstate travel and commerce. Proponents hope that by codifying Roe in this way, a new federal law guaranteeing the right to abortion would survive the Supreme Court’s inevitable review.

But the Supreme Court has narrowed Congress’s commerce power significantly since the mid-1990s

Unfortunately for proponents, the Supreme Court has become much, much more conservative since 1964. As I detail in “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Congress’s commerce power has been one of the primary targets of a conservative legal movement eager to limit the regulatory scope and power of the federal government.

After upholding nearly every law Congress passed under the Commerce Clause from 1937 onward, the increasingly conservative Supreme Court started to set limits on the commerce power in the mid-1990s. For example, in U.S. v. Lopez (1995), a five-justice conservative majority ruled that the Gun Free School Zones Act exceeded Congress’s power under the Commerce Clause. Just a few years later, in U.S. v. Morrison (2000), the Supreme Court struck down parts of the Violence Against Women Act, despite significant findings that gender-motivated violence had an impact on interstate commerce.

And in the 2012 Obamacare case, Chief Justice John G. Roberts Jr. struck down the individual mandate to purchase health insurance as exceeding Congress’s power under the Commerce Clause, even though he went on to uphold the mandate under the constitution’s grant to Congress of the power to tax.

With these negative Commerce Clause decisions and an even more conservative Supreme Court supermajority installed for the foreseeable future, it is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.

Conservatives may control the Supreme Court until the 2050s

The power to protect abortion through federal law also would include the power to prohibit abortion

It’s possible that the Supreme Court would choose to uphold a WHPA, if passed and signed. Even with these unfavorable rulings, there is ample Supreme Court precedent to support Congress’s regulating abortion through interstate commerce, as law professor Julian Mortenson outlines.

But there is another reason that Democrats in Congress may not want to codify Roe through legislation.

If the Supreme Court rules that Congress has the power to protect abortion through legislation, Congress also would have the power to prohibit abortion through legislation. As Chief Justice John Marshall famously concluded in an 1824 Commerce Clause case, the power to regulate necessarily includes the power to prohibit.

Ultimately, any victory for abortion rights the Democrats might claim with the WHPA would be temporary, lasting only until Republicans regained control.

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Read more:

Half of Americans support abortion on demand

If the Supreme Court undermines Roe v. Wade, contraception could be banned

Conservative Republican women have led the fight to restrict abortion

You’ve seen the leaked opinion overturning Roe. Here’s what comes next.

The Supreme Court might overturn Roe. It took decades of scorched-earth conservative politics to get here.