The Volokh Conspiracy
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A Conservative Constitutional Argument Against a National Abortion Ban
Conservative legal scholar William Hodes argues that federal restrictions on abortion are beyond the scope of Congressional power.
Since the Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization last year, many conservatives have begun to advocate the enactment of a federal law banning or restricting abortion. That includes at least three current GOP presidential candidates, and prominent GOP Sen. Lindsey Graham, who has proposed a federal ban on abortions more than 15 weeks into a pregnancy.
In an article published on the Federalist Society website, pro-life conservative legal scholar William Hodes argues that any such federal legislation would be unconstitutional, because it would exceed the scope of congressional power:
There are weighty legal, moral, medical, and political or policy arguments both for and against abortion, at different points during the gestation period and under varying maternal and fetal circumstances. But those are not the stuff of constitutional adjudication. The point of Dobbs, as the Court repeatedly said, was to return those arguments to the political process, meaning "to the people and their elected representatives." Moreover, the Court repeatedly made clear its assumption that those elected representatives would be state legislators….
The chief reason that the proposed federal law cannot survive a constitutional challenge is that Congress lacks power to punish individual abortionists for plying their trade….
The government of the United States is a government of limited, enumerated powers. It has no power under the Fourteenth Amendment to criminalize the actions of individuals unless they are state or local government operatives or can be said to be acting "under color of state law." To be sure, non-government actors can become state actors by conspiring with state or local officials or acting on their behalf, at their direction, or in response to their coercion.
But mere government "facilitation" or "encouragement," such as, perhaps, the payment of Medicaid dollars, is not enough to turn private action into state action, unless it can fairly be said that the action—the abortion—is attributable to the state….
Although the state action doctrine prevents Congress from passing laws regulating or criminalizing private conduct pursuant to its Fourteenth Amendment enforcement power, there are many federal statutes, both criminal and civil, that do directly prohibit private actors from interfering with or violating the federal rights of others. Congressional power to pass those laws is derived from the Necessary and Proper Clause as applied to bankruptcy, federal taxation, patents, the post office, and much more. But the default go-to source of power is the Interstate Commerce Clause—frequently the constitutional elephant in the room…..
In the 1995 case of U.S. v. Lopez, for example, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, which Congress had passed relying solely on the authority of its Commerce Clause power. A narrow majority of the Court held that talismanic invocation of the Commerce Clause was not enough: the mere possession of a firearm near a school could not "affect" any commercial or economic activity, even in the aggregate, although it is easy to list almost endless possible follow-on economic consequences of guns in schools, such as an increase in overall medical costs. But those consequences could just as easily follow from the commission of almost any crime, which demonstrated that the 1990 Act was a "police power" regulation, pure and simple. And the Constitution does not assign police powers to the federal government that it can bring to bear against individual citizens.
For the same reason, the Supreme Court invalidated the part of the Violence Against Women Act of 1994 that allowed a victim of sexual assault to sue her attacker, whether the attack was perpetrated under color of state law or not. In the 2000 case of U.S. v. Morrison, the Court again found that punishing the actor in such situations was beyond the scope of Congress's Commerce Clause power, because the act itself had no economic or commercial element to it.
Perhaps most significant was the 2012 decision in National Federation of Independent Business v. Sebelius, which famously (or infamously) upheld the Affordable Care Act (Obamacare) requirement that individuals buy a certain level of pre-paid health care services as a valid exercise of Congress's power to tax. But the Court only addressed the tax question because it had first held that Congress had exceeded its power under the Commerce Clause.
That initial part of the NFIB decision had major implications for the future development of the Court's approach to the Commerce Clause, because although the economic and commercial impact of the individual mandate could not have been clearer, Chief Justice Roberts cogently explained that Congress was not engaging in any regulation of commerce. It was imposing a health and welfare regulation pursuant to a police power it did not have, and trying to pass it off as regulating commerce simply because so much money was involved.
Put Lopez and Morrison and NFIB together, and the pathway to invalidating a potential federal 15-week abortions restriction as an exercise of the Commerce Clause power is easy to see.
I agree with Hodes' conclusion and with most of his arguments. It's worth noting that, if a federal law banning abortion is beyond the scope of Congress' power, the same is also true of laws proposed by Democrats mandating nationwide protection for abortion rights, overriding contrary state laws. Before Dobbs, such a law might have been defensible as a tool for enforcing individual constitutional rights protected by the Fourteenth Amendment. But under Dobbs, there is little, if any such right, remaining, and therefore Congress could not legislate to protect it using its Section 5 power to enact "appropriate" legislation to enforce the Fourteenth Amendment. There is likely an exception for laws protecting individuals' rights to travel out of state to get an abortion, a right Justice Kavanaugh emphasized remains protected in a key concurring opinion in Dobbs. The same might be true for cases where an abortion is needed to protect the life of the pregnant woman.
I would, however, qualify Hodes' argument in three ways. First, I am not as convinced as he is that Dobbs limits abortion regulation to the states. I think the Court simply did not address the extent to which (if any) Congress has power in this area.
Second, I believe current Supreme Court Commerce Clause precedent (which I believe is badly wrong on some points) leaves more room for federal abortion regulation than Hodes allows, though I also think it likely that the Court might overrule or pare back the relevant precedent if the issue comes up. I covered some of these issues here:
Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress' power to regulate interstate commerce includes the authority to restrict almost any "economic activity," so long as it has a "substantial effect" on interstate trade. And [in Raich] "economic activity" is defined very broadly to include anything that involves the "production, distribution, and consumption of commodities." That definition allowed the Court to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the "consumption" and "distribution" of commodities, such as medical supplies. In addition, most abortions qualify as "economic" transactions because doctors, nurses, and others are paid to perform them.
One could argue that a federal law banning or severely restricting abortions isn't "really" aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.
If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe [update: it has indeed done so] Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions—even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A…..
The Commerce Clause rationale for abortion restrictions might not apply to abortions that are performed on a noncommercial basis by staff who provide their services for free. But such cases are only a small percentage of the total. Moreover, in Raich, the Court upheld the ban on Angel Raich's possession of marijuana even though the producers had in fact provided it to her for free. The theory was that even such completely noncommercial production and distribution of an illegal drug could impact the interstate market.
These…. Commerce Clause arguments may strike some readers as the kind of sophistry that gives lawyers a bad name. I sympathize with that reaction! I hate these arguments myself, and have long argued that Raich is a terrible decision that should be overruled. But this is exactly the sort of reasoning that prevailed in Raich, and provides a constitutional rationale for much of the federal War on Drugs.
As Hodes points out, Justice Clarence Thomas (a man not normally considered a champion of abortion rights!) has suggested (in a 2007 concurring opinion) he believes federal abortion restrictions may go beyond the scope of congressional power. And I think there is a good chance Thomas and at least some other conservative justices would vote to invalidate such laws on federalism grounds, if the issue comes before them. It's even possible such a law would be invalidated by a coalition of conservative justices who believe it exceeds the scope of federal power, and liberal ones who vote against on individual rights grounds (because they are willing to overturn or limit Dobbs, a precedent they have little respect for).
Finally, for reasons I summarized here, Congress could potentially use its Spending Clause power to restrict abortion by conditioning federal grants to state and local governments on the latter's willingness to enact abortion restrictions. Of course, states could potentially refuse the grants (and associated conditions), and many blue states might well do exactly that.
Even if a Republican wins the presidency in 2024, it's far from clear that any federal abortion ban will be enacted anytime soon. Such a law would, among other things, likely have to overcome a filibuster in the Senate (or GOP senators would have to change the filibuster rules). But the idea of a federal ban is mainstream enough to be taken seriously. Thus, it's also worth considering the constitutional case against it. Hodes has performed a useful service in summarizing it. And, as a pro-life conservative, he cannot easily be accused of just bending the law to support his policy preferences.
