Comment: Congress can’t legislate on abortion, for or against

Efforts to codify Roe or adopt a national ban would face challenges on constitutional grounds.

By John Yoo / Special to The Washington Post

Last spring, as the Supreme Court’s overturning of Roe v. Wade loomed, congressional Democrats made the mistake of attempting to federally impose abortion rights nationwide. Now, some Republicans want to return the favor by seeking to ban all abortions after 15 weeks of pregnancy. Both abortion rights and antiabortion proposals assault the constitutional structure, which protects the right of the states to decide fundamental moral issues.

In its Dobbs v. Jackson Women’s Health Organization ruling, the Supreme Court reversed Roe’s discovery of a woman’s right to an abortion in the 14th Amendment, which prohibits the state from depriving anyone of “life, liberty, or property, without due process of law.” The court concluded in June that Roe had fundamentally erred because it nationalized a right neither established by the constitutional text, as originally understood, nor developed over the course of American history and tradition. When the Constitution is thus silent, the court held, the political process in the states will decide abortion, just as it does the death penalty and euthanasia.

As Justice Samuel Alito Jr. declared for the majority: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Quoting Justice Antonin Scalia’s scathing dissent in Planned Parenthood v. Casey in 1992, Alito asserted how the Constitution should handle most moral issues: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Alito and the majority bluntly concluded: “That is what the Constitution and the rule of law demand.”

Enterprising members of Congress were not deterred. Immediately after the Dobbs draft opinion leaked in May, Senate Majority Leader Chuck Schumer, D-N.Y., proposed that Congress codify Roe. He could not even persuade a majority of his own Democratic-controlled Senate to support him. Now, Sen. Lindsey Graham, R-S.C., has this week introduced legislation to ban abortion nationwide after 15 weeks of pregnancy, while allowing states to adopt even stricter limits.

Schumer and Graham and anyone else who attempts a similar gambit should be put on notice: The Constitution does not permit Congress to directly overturn a Supreme Court decision. In the 1997 case City of Boerne v. Flores, the court confronted the Religious Freedom Restoration Act, legislation that contravened a court ruling that had itself overturned earlier court cases protecting religious freedoms. Congress claimed that it had the power under Section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the 14th Amendment.

Congress similarly might claim that it has the right to enforce its own understanding of “liberty” in the due process clause to include abortion (Schumer), or of “life” to ban abortion (Graham).

Boerne, however, struck down the Religious Freedom Restoration Act. Justice Anthony Kennedy wrote for the court: “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is.” The power to determine rights under the 14th Amendment rests in the hands of the Supreme Court, not Congress. Boerne dooms any congressional effort to overrule Dobbs.

In their failed effort to codify Roe, Senate Democrats also relied on the interstate commerce clause, which has indeed provided the authority for some broad rights; but not enough to support the regulation of the entire medical profession, particularly since the court over the past few decades has been moving to restrict congressional use of the commerce clause in legislation.

A 1995 ruling struck down a law that had prohibited guns in school zones, and in 2000 the court barred a federal statute making illegal gender-motivated violence that crossed state lines. In both cases, the court found that the federal government could not use the commerce clause to intrude into the states’ prerogatives over criminal law. Graham’s bill would represent another unconstitutional invasion of the state authority to regulate crime or the professions.

Congress does have indirect means to influence abortion policies through its power of the purse. It could provide vouchers or tax credits to those that are pregnant who must travel to pro-choice states. Or a pro-life Congress could cut federal health-care funds for states and hospitals that perform abortions. But these measures would affect abortion rights only at the margins.

As Justice Brett Kavanaugh wrote in a concurrence that provided the crucial fifth vote to overrule Roe, “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the states or Congress; like the numerous other difficult questions of American social and economic policy that the Constitution does not address.”

Graham’s bill, like Schumer’s, simply seeks to avoid the hard political work of making good-faith arguments, with the goal of persuading Americans on the fundamental moral question of abortion.

John Yoo is a law professor at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute and a visiting fellow at the Hoover Institution.

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