The Volokh Conspiracy
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Could Congress Prohibit Abortion If Roe Is Overturned? (Updated)
Questions about the scope of federal power will remain.
In today's Washington Post Robert George and Joshua Craddock argue that Congress can and should enact federal legislation to "enforce constitutional rights for the unborn" if the Supreme Court overturns Roe v. Wade. Echoing some of the arguments made in this amicus brief submitted in the Dobbs case, George and Craddock argue that the 14th Amendment protects the unborn. They then go further and assert that Congress would have the power to enact legislation limiting abortion.
Because state laws allowing elective abortion necessarily deprive a class of human beings — those at the earliest stages of development — of "the equal protection of the laws," they violate constitutional rights. Such laws render generally applicable statutes against homicide inapplicable to a disfavored class of persons and expose unborn children to lethal violence.
These are precisely the sort of wrongs that the 14th Amendment was designed to rectify. It equipped Congress to meet this challenge by granting to it, in Section 5, "power to enforce, by appropriate legislation" the amendment's due process and equal protection guarantees. As the Supreme Court explained in the 1880 case Ex Parte Virginia, whatever legislation is "adapted to carry out . . . the equal protection of the laws against State denial or invasion . . . is brought within the domain of congressional power."
I am unpersuaded by their analysis. For reasons I explained in a prior post, I do not think that allowing abortion violates Equal Protection or any other aspect of the 14th Amendment. I also reject George and Craddock's broad view of Section 5 of the 14th Amendment -- a view of Congress's power rejected by the Supreme Court in City of Boerne v. Flores. Congress has the power to enforce the 14th Amendment's guarantees. It does not have the power to redefine what those guarantees are -- a power that would enable Congress to redefine the constitutional limits on its on authority. I addressed some of these points in this 2015 post questioning Congress's authority to regulate abortion.
Another avenue through which Congress could seek to limit or prohibit abortion in a post-Roe world would be through the Commerce Clause (which I also address in the prior link). Unquestionably, current Commerce Clause doctrine is broad, but I do not think that it provides Congress with a blank check (as the Court reaffirmed in NFIB v. Sebelius). While not a slam dunk, I think one could properly distinguish between narrow legislation prohibiting a single medical procedure from the sort of comprehensive regulatory scheme upheld in Gonzales v. Raich (a point I addressed here).
When Congress enacted the federal partial birth abortion ban, the law was not challenged on Commerce Clause grounds (as Justice Thomas noted in a separate opinion). Abortion rights organizations were apparently reluctant to raise enumerated powers objections to the law, perhaps because they objected to how such arguments had been used in prior cases (such as United States v. Morrison) and might be used in the future.
Should the Court overturn Roe and Congress begins considering legislation to limit abortion, we will see whether the reluctance to deploy "conservative" arguments about the scope of federal power for progressive ends remains.
UPDATE: This post has prompted some responses. On the scope of Congressional power under the 14th Amendment, Robert George & Josh Craddock respond here. On the extent to which the 14th Amendment protects the unborn, Robert George and John Finnis respond here.
