The Volokh Conspiracy
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As you probably know by now, a leaked draft Supreme Court opinion indicates there may well be five justices prepared to overrule Roe v. Wade. For a long time, many assumed that if Roe were to be overruled, abortion policy would be "left to the states." That will indeed happen in the short run. But such a state of affairs might not last. Many Republicans have been advocating nationwide bans on abortion, including very sweeping ones that would forbid all abortions more than six weeks into a pregnancy. For their part, many Democrats, including Senate Majority Leader Chuck Schumer, back nationwide legislation protecting abortion rights.
Would such laws be constitutional? I have written about this issue twice before (see here and here). The bottom line is that current Supreme Court precedent likely would enable Congress to ban most, if not all, abortions if it wanted to. That's because the Court has endorsed a ridiculously broad interpretation of Congress' powers to regulate interstate commerce. But that precedent might be pared back, thanks in part to that unlikely champion of abortion rights, Clarence Thomas.
Here's why current precedent likely supports broad congressional power to restrict abortion:
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, 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 kinds of 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.
However, Raich has been much criticized by conservative and libertarian legal commentators, and is especially abhorred by Justice Clarence Thomas. He has also suggested, in a 2007 concurring opinion, that federal abortion restrictions may be beyond the scope of congressional power under the Commerce Clause. It is possible that one or more other conservative justices agree with him on this. A federal abortion ban could, therefore, be struck down by a coalition of conservative justices who oppose it on federalism grounds, and liberal ones who believe it violates constitutional individual rights. I outlined this scenario here:
In Gonzales v. Carhart (2007), the Supreme Court upheld a federal restriction on late-term "partial birth" against individual rights challenges. Justice Clarence Thomas wrote a concurring opinion emphasizing the possibility that the law in question exceeds the scope of congressional power under the Commerce Clause. Thomas previously wrote a forceful dissent in Gonzales v. Raich…. [In 2021], he reiterated key elements of his critique of that decision, and urged the Supreme Court to reconsider… it….
It's possible that one or more other conservative justices could join Thomas's reasoning.
One can then envision federal abortion restrictions getting invalidated by a coalition of conservative justices who believe they are beyond the power of the federal government, and liberal justices who object on individual-rights grounds. It is also possible (though less likely) that some liberal jurists could endorse the federalism argument against these restrictions. Liberal thinking on constitutional federalism shifted a good deal in recent years, and some of that shift may go beyond "fair weather federalism" brought on by opposition to Trump's policies. It's also possible that either liberal or conservative judges will think of clever ways to limit the scope of Raich, even if it doesn't get overruled completely.
Cynics may say that Thomas isn't really sincere in his opposition to Raich or his doubts about the constitutionality of federal abortion restrictions. I cannot know his true feelings for sure. But, as a general rule, Thomas is known for being a man who says what he means and means what he says. He even often gets criticized for his apparent reluctance to compromise with other justices or respect their sensibilities. I also see little motive for him to express the above views if he doesn't really mean them. It's unlikely Thomas was trying to curry favor with liberals. If he truly valued such favor, he would say and do a lot of things differently.
Thus, if Congress does enact federal abortion restrictions, abortion rights advocates may well have a good chance of stopping them by relying on federalism arguments. In order to make the most of that opportunity, they would need to explicitly make that case and—ideally—ask the Court to overrule or severely limit Raich.
Attacking Raich and other ultra-broad Commerce Clause precedents may go against the grain for some left-of-center abortions rights advocates. But immigration advocates have made a similar shift in sanctuary cities cases (with great success), and the pro-choice legal community could follow their example. For some pro-choicers—myself very much included!—the possibility that reducing Commerce Clause authority would weaken the War on Drugs would be a feature, not a bug.
In addition to using the Commerce Clause, federal abortion restrictions could also be enacted using Congress' spending power. I go through some of the details here:
In addition to trying to directly regulate abortion by using its Commerce Clause powers, Congress could also try to do so indirectly by using its Spending Clause power to condition grants to state governments. For example, it could enact legislation restricting various types of health care grants to state governments unless the latter ban or severely restrict abortion. These kinds of conditional spending restrictions are subject to a number of constraints under current Supreme Court precedent. The amount of money involved cannot be so large as to be "coercive"; the conditions must be sufficiently related to the purpose of the grant; and they have to be clearly stated on the face of the law—not just inferred by the executive branch. The Trump administration ran afoul of all three of these restrictions during its campaign to cut federal funds to "sanctuary cities…."
Much depends on the exact scope and wording of the legislation at issue. Nonetheless, I think a carefully drafted conditional-spending restriction on abortion rights could potentially jump through these hoops. Then, blue states would face a choice of either losing some of their federal health care grants or imposing abortion restrictions.
The Spending Clause approach is less threatening to abortion rights because states could…. avoid the conditions by refusing the federal funds tied to them. In practice, such refusals of federal funds are very rare. But a hot-button ideological issue like abortion might prove an exception to that rule.
I would add that the requirements of relatedness and noncoercion set a ceiling to the amount of pressure Congress could bring to bear in this way. It couldn't deny affected states all or most federal health care funding (that is precluded by NFIB v. Sebelius, which struck down as coercive a provision of the Affordable Care Act that would deny all Medicaid funds to states that refuse to expand Medicaid), and it cannot deny funds with little or no connection to abortion.
Some conservatives have argued that a federal law banning abortion might be authorized by Section 5 of the 14th Amendment, rather than the Commerce or Spending Clauses. But that would be a radical departure not only from current Supreme Court precedent, but also from traditional conservative originalist approaches to the Fourteenth Amendment. Co-blogger Jonathan Adler explained why here.
Obviously, the above constraints on federal laws banning abortion would also apply to federal laws seeking to protect it against the states. In the wake of a decision overruling Roe, conservatives and liberals alike may need to decide whether they care more about preserving the autonomy of "their" states, or about retaining the power to control the other side's states when their preferred party is in power in Washington. In both cases, however, even if some would prefer to preserve maximal federal power, there may well be others willing to file federalism-based lawsuits, regardless of what their ideological comrades think.
Finally, I should note the scenarios discussed above may not come to pass, because political obstacles may prevent Congress from enacting any significant new abortion legislation, whether pro-life or pro-choice. Doing so would likely require either a massive 60-vote Senate supermajority or the abolition or limitation of the filibuster. On the Republican side, federal abortion restrictions could be opposed by key moderate senators, such as Susan Collins and Lisa Murkowski (both of whom are pro-choice).
But while the obstacles to such legislation are significant, they may not be insuperable. If you believe that abortion is murder, you might well be willing to set aside the filibuster to ban it. Ditto if you think it's a fundamental human right, and only federal legislation can ensure its protection. If Roe does indeed get overruled, time will tell if major new federal abortion legislation is politically feasible or not. If it turns out that it is, there is a good chance it might be successfully challenged on federalism grounds.
UPDATE: Back in 2015, co-blogger Jonathan Adler also wrote a post explaining why federal abortion restrictions exceed the scope of Congress' powers under the Commerce Clause. I think he's overly optimistic when it comes to current precedent. But the kinds of arguments he marshals are the sort that might well be accepted by Justice Thomas and others if the issue were to come before the Supreme Court.
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