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There are proposals to pass a federal law allowing abortion in all states, in case Roe v. Wade is overturned. Ignoring the political feasibility of passing such a law, on what constitutional basis can the federal government regulate abortion?

Previous laws like the Partial-Birth Abortion Ban Act seem to rely on the Commerce Clause, as the wording is (emphasis mine):

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion (...) shall be fined under this title or imprisoned not more than 2 years (...)

But abortions seem like they are usually local affairs, so if prosecution must show an effect on interstate commerce, it sounds like such a law may not be very effective.

Is the Commerce Clause also the most likely basis for the federal government to ban states from restricting abortions? How effective is it likely to be? Are there other powers the federal government could use to guarantee the availability of abortions?

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    Since answering this question requires detailed technical legal analysis, it's much more suitable for a site which entertains questions about legal details of laws, such as law.SE. I’m voting to close this question because should be migrated to law.se.
    – wrod
    May 3 at 19:11
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    Asked this on Law: law.stackexchange.com/questions/79849/… May 3 at 20:06
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    To close voters: proposed legislation (or the constitutional basis thereof) is entirely on-topic here.
    – Fizz
    May 4 at 13:03
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    @fizz " Ignoring the political feasibility of passing such a law, on what constitutional basis can the federal government regulate abortion?" ... isn't this actually saying we should disregard the politics and only discuss the constitutionality (i.e. law)?
    – CGCampbell
    May 5 at 13:16
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    'encode' is ok I guess but I think the usual terminology is 'codify'. May 5 at 15:52

5 Answers 5

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On what basis could the US federal government encode Roe v. Wade?

Both Roe v. Wade and Planned Parenthood v. Casey were decided based on the due process clause of the Fourteenth Amendment, which reads in part,

Section 1 ... nor shall any State deprive any person of life, liberty, or property, without due process of law; ...

Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

A bill, say, S.3713 - Reproductive Choice Act, may then use Section 5 of the Fourteenth Amendment as the authority for legislation,

To codify the essential holdings of Roe v. Wade (410 U.S. 113 (1973)) and Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833 (1992)).

Previously, a Fourteenth Amendment case, United States v. Wong Kim Ark, 169 U.S. 649 (1898), was used to establish birth citizenship currently codified in 8 U.S. Code § 1401 (a). And the Fifteenth Amendment was used to establish the Voting Rights Act of 1965.

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    That's informative! But if the supreme court decides abortion isn't automatically protected by the 14th amendment (when striking down Roe or Casey), wouldn't that imply that congress can't use the same amendment to protect abortion? Or has such an implicit / explicit difference in the application of the 14th amendment been recognized by courts before?
    – zale
    May 4 at 14:55
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    @zale - Note the words "or shall any State deprive any person of ..., liberty, ...". Should any federal legislation hold that early termination of pregnancy is a liberty not to be deprived, the requirements for "due process" are then narrowed. Even if the Supreme Court decides that Roe was wrongly decided, any future cases (by any state) would need to prove that the Congressional legislation was invalid. Given that Section 5 grants that authority, it would be difficult to prove. I am not aware of similar cases, but Congress occasionally overrides the Supreme Court by passing legislation.
    – Rick Smith
    May 4 at 17:05
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    @RickSmith The fact that there is no legislation (hence nothing to "prove... was invalid") is the basis of the current supreme court arguments. They are compelling Congress to make a law regarding this (and then their job is to assess whether such a law violates the constitution). The supreme court does not make laws (that's the legislative branch's job) but apparently the argument was that one was mistakenly created by an earlier ruling (Roe v Wade) de facto.
    – uberhaxed
    May 4 at 18:03
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If medical insurance is in any way involved, then that's interstate commerce right there, unless it happens to be a local insurance company (uncommon in the US; most insurers are huge conglomerates), a state-run exchange under the Affordable Care Act (but those exchanges sell policies which are ultimately underwritten by private insurance companies, which again tend to be interstate), or Medicaid (which only covers abortions in states that choose to allow such coverage; presumably those states won't try to ban abortion anyway).

Even if it is a local insurance company, or even if there's no insurance involved whatsoever, it's still tied to the national market for medical insurance and medical treatment overall (see Gonzales v. Raich). If state X bans abortions, and neighboring state Y does not ban abortions, then people will cross the border from X to Y to receive abortions, and so it is difficult to argue that X's ban has no effect on interstate commerce. While this effect might seem rather attenuated, it's quite similar to what the Court described in the case linked above.

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    congress.gov/bill/117th-congress/house-bill/3755/text - Women’s Health Protection Act leans on the Interstate Commerce in sections 2. a) 19 to 21
    – Jontia
    May 4 at 8:59
  • the second argument is probably stronger as medical - and most - insurance is in fact tightly regulated state by state, even though large companies may issue policies in many states. Maybe the fact that policies may and often do provide some coverage outside your home state is a stronger point?
    – Mike M
    May 4 at 11:49
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    @MikeM: It doesn't matter if there are state-by-state regulations or the terms of the policy vary by state. If the insurance co. is officially incorporated in state A (which is probably Delaware, in practice), and the policy is issued to someone in state B, then it's interstate commerce.
    – Kevin
    May 4 at 16:38
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    The first paragraph is incorrect. Insurance is never sold across state lines in the U.S. The "huge conglomerates" actually have separate entities that sell insurance within each state individually. There is a federal law explicitly banning the sale of health insurance across state lines. However, in practice, courts have held almost anything to "affect Interstate commerce." This would be one of the less-tenuous ones, especially since insurance purchased in one state still applies to services provided in another. +1 for the second paragraph, though.
    – reirab
    May 5 at 16:19
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The only way for the federal government to actually codify the results of the Roe v. Wade decision would be a Constitutional Amendment. Given that 2 in 3 Americans don't agree that abortion should be legal in all circumstances, then it should be needless to say that the requirement of 2/3 of both houses of Congress proposing it and 3/4 of states ratifying it is simply not going to happen there.

However, Congress could pass a law that simply bans any restriction of abortion by the states. This would require only the normal process for passing a law, i.e. majority vote of both houses of Congress and being signed by the President, though, in practice, a 60% supermajority might be required in the Senate to overcome a filibuster. Note, however, that this would not have anywhere near the legal effect of Roe or Casey, as it could be reversed just as easily as it was passed after a change of Congress and/or the administration. Congress cannot create Constitutional rights by passing a regular bill; only amending the Constitution can do that.

The Supremacy Clause of the U.S. Constitution (Article VI, paragraph 2) states that (emphasis mine),

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

In other words, any law that Congress makes under its authority granted in the Constitution preempts any state law (including provisions of state Constitutions) to the contrary. So, if Congress passed a (legal) law stating that states can't place further restrictions on abortion, then they can't, as long as that law stands.

The legal basis for making such a law would most likely be simply the Commerce Clause, which they already use to justify just about anything Congress does. The Commerce Clause is paragraph 3 of Article I, Section 8 of the U.S. Constitution, which reads (emphasis mine),

Congress shall have power...
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Courts have allowed Congress to get away with pretty much anything that they can argue "affects interstate commerce" under the Commerce Clause, even if the actual actions being regulated occur entirely within a state in a given case. The relation is often extremely tenuous and this would probably be one of the less egregious examples if it were passed. States would probably challenge it in court anyway (if it didn't get repealed before they had time to do so,) but it's likely that the challenges would not succeed, at least not on the argument that it wasn't authorized under the Commerce Clause.

Granted, this is assuming that current court precedent on the Commerce Clause stands and the Supreme Court does not choose to narrow its interpretation of the clause to one requiring more direct relation to actual interstate commerce. Given the change in the makeup of the court over the past several years, it is possible that the court could narrow that interpretation in a future decision.

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  • In this particular case, the justification for abortions affecting interstate commerce would be "women in states that ban abortion might go get abortions in states that haven't".
    – nick012000
    May 8 at 4:58
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    @nick012000 Or just the standard one of restricting abortions in one state affecting pricing both for abortion in other states, as well as pricing and availability for tools, staff, etc. in other states. They seriously use stuff like that to justify a lot of laws, tenuous as it may be. Of course, if it can be regulated on those grounds, then the flip side is also true: Congress could restrict access in every state with the exact same justification. Neither is especially likely in the current Congress, though, as Manchin would almost certainly break with Democratic leadership in the Senate.
    – reirab
    May 8 at 5:18
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(copied from my answer on the Law.SE version of this Q&A)

Purse Strings

The standard way to get near uniform state laws (or lack thereof) on an issue is to dangle bags of money in front of the states. The states all have the power to set their legal driving and drinking ages, as well as their speed limits, to whatever they see fit, but yet these values were remarkably uniform for a time, with most driving ages being 16, most drinking ages being 21, and most highway speed limits being 65. Congress has at various points used federal funding to make this happen; though some have been repealed or altered by this point, or had states decide they didn't wish to participate, resulting in a greater spread of values in the present day. But in any case, by making certain funds contingent upon meeting conditions such as minimum ages, they can persuade states to meet those conditions to save themselves money.

There are SCOTUS-imposed limits on how strong this "persuasion" can be. The requirements have to be meaningfully related to what's being funded and the goal thereof (so putting abortion access requirements on environmental funding won't work), and it can't make up so large a portion of the state budget that it becomes impossible to pass up the funding. Where the line on this is vague, I think it was last placed around .5%.

On average, States spend about 9-10% of their budget on healthcare, with 9-10% of that coming from federal grants. So approximately 1% of state budgets are predicated upon federal healthcare fundings. Make at most half of those (on average) contingent upon meeting some minimum access to abortion care, and you may have yourself a SCOTUS-approvable way to constitutionally persuade, but not mandate, states to pass uniform sets of laws. Some states may forgo this, and clearly with the current SCOTUS there's no telling what prior precedents they'll happily strike down, so there's no guarantees, but it otherwise creates financial pressures by offering alleviation of state budget issues.

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    "and most highway speed limits being 65" This hasn't been true in a long time. Most states have at least 70 mph, most Western states have at least 75, some 80. (At least) Wyoming has 2-lane undivided highways that are 70 mph... I seem to recall even one gravel highway that was something like 45 or 55. It appears that the only states that still have 65 mph max speed limit are AK, HI, and some Northeastern states. HI is because it's tiny and AK because its highways are mostly undivided, aside from short sections near Anchorage.
    – reirab
    May 5 at 16:30
  • @reirab Likewise, I thought most driving ages were 16, there may be certain restrictions placed on 16 and 17 year-olds, but you can still get a license at 16.
    – Glen Yates
    May 5 at 17:46
  • @GlenYates Good point. Indeed, 16 is by far the most common, though one state (South Dakota) is as young as 14 years, 3 months, while one is as old as 17 (New Jersey.) None are 18.
    – reirab
    May 5 at 18:33
  • Some of the laws that helped impose these have since been repealed or had their funding contingencies altered/removed, and some states simply decided they'd rather forgo the funds to set their own policies. They were pretty uniform for a time, but they've started to drift since then I suppose; perhaps a bit more than I might have thought. And on driving age I was probably thinking 18 since I was a late bloomer when it came to driving and got mine at 18, but now that you've pointed it out, it could have been as early as 16 if I had tried for it. May 5 at 22:06
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    @zibadawatimmy Yeah, back during the Carter administration and the fuel shortages that were happening back then, there was a federal law that made it actually 55 nationwide in order to try to conserve fuel. Everyone hated it, though, and it didn't last long. 55 might be fine if you live in New England and don't need to drive far very often, but it would definitely stink if you lived in, say, Montana, Utah, Arizona, Nevada, etc. where it's often 100+ miles between small towns.
    – reirab
    May 6 at 17:48
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Your question is primarily a legal question as I read it. But I can see a political side to it.

The short answer is that in the US political system one can regulate or legislate to grant, extend, diminish, or eliminate the legal defensibility or right to take an action.

Roe v Wade, whose result I prefer, was likely a case of SCOTUS finding a way to get to the right answer in an attempt to embrace the desire of the public; this is contrary to the well defined role of SCOTUS and so it was only a matter of time - for proof of this please see legal analysis issued in that era.

In the US laws are generally written by elected officials. Elected officials are generally motivated by power, money, religion & spirituality, and the will of those they represent. The first three are hopelessly entangled in US politics which is why we are here (current SCOTUS is somewhat political and very tilted towards what is usually referred to as the "conservative" end of the spectrum - a bizarre categorization scheme).

The path forward is to force the hand of legislators to do the bidding of the public who nearly universally agrees that abortions in the first term are at the discretion of the one carrying the child, and, later abortions are allowable in the case of fetal inviability or mortal danger to host.

A few related facts as of May 2022:

  1. A child born at 24 weeks is expected to live though possibly with some health issues (especially underdeveloped heart or lungs)
  2. A child at 22 weeks is virtually guaranteed to live a very short life in a neo-natal ICU
  3. Abortions can be done at home and were prior to the original ruling in Roe v Wade
  4. Abortions done outside of a health care facility put the host at great risk
  5. The Abrahamic bible considers a fetus property, not life (Exodus 21:22-25)
  6. The Abrahamic bible considers abortion a legitimate legal procedure in the case of an unfaithful wife (Numbers 5:27-28)

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