The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent
The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back.
GOP Sen. Lindsey Graham recently proposed a federal law banning most abortions more than 15 weeks into a pregnancy. The idea flies in the face of many years of Republican rhetoric to the effect that overruling Roe v. Wade (as the Court recently did in Dobbs v. Jackson Women's Health Organization) would return the issue of abortion to the states. If enacted, it would also be an unconstitutional extension of federal power. But it might nonetheless be upheld under the Supreme Court's overbroad interpretation of Congress' power to regulate interstate commerce.
Graham's proposed bill cites two possible sources of federal authority to restrict abortion: the Fourteenth Amendment, and the Commerce Clause. In a Washington Post op ed, prominent conservative legal scholar John Yoo argues that neither holds up. Yoo is absolutely right about the very weak Fourteenth Amendment theory. See also the more detailed analysis of this rationale for a federal abortion ban by co-blogger Jonathan Adler.
I also agree with Yoo that the Commerce Clause theory is wrong. But I fear he underrates the possibility that it could fly under the Supreme Court's current extremely broad interpretation of the Commerce Clause. I explained why in a previous post:
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.
It is true, as Yoo points out, that the Supreme Court has limited the commerce power in several cases since 1995:
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.
But the Court decided these cases the way it did because the activity regulated by the laws in question (gun possession in school zones and gender-based violence) did not qualify as "economic activity" even under a fairly expansive definition of that concept. For reasons outlined above, most, if not all, abortions probably are "economic activities" in the Court's sense of that term.
We can't be certain that courts would uphold Graham's bill based on Raich and other similar precedents. The relevant precedent is fuzzy enough that perhaps clever lawyers and judges will find a way to distinguish abortion from marijuana possession. But there is at least a strong likelihood that they won't.
However, as also explained in my previous posts on this subject (see here and here), the Supreme Court could potentially narrow or overrule Raich and thereby open the door to striking down federal abortion bans - thanks, in large part to that unlikely champion of abortion rights, Clarence Thomas:
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 and limit it.
Back in 2018, I explained why Thomas' position could well lead him to vote to strike down federal abortion restrictions. I built on an earlier post on this subject by Cornell Law Professor Michael Dorf. 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.
All of the above applies to Democratic proposals for federal laws preempting state abortion restrictions, no less than to federal legislation banning various types of abortions, like the Graham proposal. They too almost certainly won't fly under the Fourteenth Amendment (at least so long as the Supreme Court stands by its reversal of Roe v. Wade), but might squeeze through under the Court's current Commerce Clause precedent.
For the moment, this issue remains primarily theoretical. Graham's proposal is highly unlikely to get enacted anytime soon. The Republicans do not have a majority in either house of Congress, and may well not control both even after the November election. President Biden would surely veto this law if it did get enacted at a time when he is still in office. In addition, some Republican senators are clearly unenthusiastic about the idea, in part because they fear it would be a political liability.
But the Graham bill - like Democratic proposals for federal laws protecting abortion against state restrictions - is a reminder that key elements of both parties' bases would be happy to enact a federal takeover of abortion law, if given the chance. If either party manages to get strong majorities in both houses plus control of the presidency, it could potentially happen.
At that point, the courts would have to consider whether the Constitution really gives Washington such sweeping authority. The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure, and a vast range of other activities, as well.
