by Regan Jarvis, Blog Editor
Photo courtesy of pexels.com
In June 2022, after nearly 50 years of precedent, Roe v. Wade,[1] and Planned Parenthood v. Casey[2], were overturned in the Supreme Court’s landmark opinion in Dobbs v. Jackson Women’s Health Org.[3] Justice Alito, in the majority opinion stated, “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.”[4] Prior to this decision, Roe interpreted the Due Process Clause of the Fourteenth Amendment to include the right to privacy which encompassed a woman’s decision whether or not to continue her pregnancy.[5]
In the aftermath of Dobbs, there has been an explosion of state legislation regulating abortion access. According to data published by the Guttmacher Institute, 37 states have introduced legislation that aims to ban all or most abortions and two of these states have enacted such legislation.[6] The Center for Reproductive Rights predicted that 25 states are likely to ban abortion including Alabama, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.[7] The Guttmacher Institute made a similar prediction of 26 states that will ban abortion, which excludes North Carolina and Pennsylvania but includes Florida, Iowa, and Montana.[8]
Contrary to popular belief, the Opinion in Dobbs did not necessarily come as a surprise to the legal community. Predictions of the overturn of Roe have been circulating for decades.[9] In 2000, Presidential Candidate Ralph Nader commented on the possibility of the Supreme Court overturning Roe on the political news program, “This Week.”[10]Nader explained that if Roe were to be overturned, it would not end abortion access per se.[11] Instead, abortion would become an issue of state law.[12] Nader’s remarks were viewed as flippant by many progressives who felt that Nader demonstrated an indifference toward abortion rights.[13] In years since, legal scholars have debated how Congress may intervene if abortion rights are reverted to the states.[14]
Congressional Intervention Through Application of the Commerce Clause
The Commerce Clause, or Article 1 Section 8, Clause 3 of the United States Constitution, gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”[15] For much of United States history, the Supreme Court has interpreted the Commerce Clause broadly, excluding a period between 1905 and 1937 termed the Lochner era.[16] In fact, between 1937 and 1995, the Supreme Court did not strike down a single statute on the grounds that it exceeded Congress’ power under the Commerce Clause.[17]
This streak ended with the Supreme Court’s decision in United States v. Lopez[18] where the Congress’s Commerce power was seemingly limited as applied to the prohibition of firearm possession within 1000 feet of a school.[19] In 2000, in United States v. Morrison[20], the Supreme Court struck down part of the Violence Against Women Act as beyond the Commerce Power of Congress.[21] However, it does not appear that Lopez and Morrison signaled a reversion to the Lochner era in Commerce Clause jurisprudence, as the Supreme Court again interpreted the Commerce Clause broadly in Gonzales v. Raich[22] in 2005.[23] Due to this broad interpretation, many legal scholars have proffered that the Commerce Power of Congress may be sufficient to pass legislation that would establish nationwide access to abortion.[24]
Concluding Thoughts
The Women’s Health Protection Act of 2021 (“WHPA”)[25] was introduced in the United States Congress on June 8, 2021.[26] According to the Center for Reproductive Justice, the WHPA “establishes a statutory right for health care professionals to provide abortion care and the right for their patients to receive care, free from bans and medically unnecessary restrictions that single out abortion care.”[27] The WHPA was introduced with 176 supporters in the House and 48 supporters in the Senate, setting a record for the most supported bill at introduction.[28] The House voted to pass the bill twice in 2021 and again in 2022, but each time it failed in the Senate.[29]
Despite the hurdle of an overwhelmingly conservative Supreme Court. a Commerce Clause analysis becomes seemingly irrelevant if Congress is unable to pass legislation that could be constitutionally challenged. [30] In the meantime, multiple states have restricted abortion access.[31] The Guttmacher Institute estimates that 58 percent of women between the ages of 13 and 44 live in a state that is “hostile or extremely hostile to abortion rights.”[32] The United States has become one of only four countries that have tightened abortion laws since 1994.[33] In that period, 59 countries have expanded abortion access.[34] Until Congress is able to pass legislation pertaining to reproductive rights, Americans will be left in the dark as to Congress’ Commerce Power and will be seemingly acting in contrast with a global trend towards expanded abortion access.
[1] Roe v. Wade, 410 U.S. 113 (1973)
[2] Planned Parenthood v. Casey, 505 U.S. 833 (1992)
[3] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022)
[4] Id. at 2242.
[5] See generally 410 U.S. 113.
[6] https://www.guttmacher.org/state-legislation-tracker
[7] Claire Cain Miller & Margot Sanger-Katz, What Does the End of Roe Mean? Key Questions and Answers., N.Y. Times (sub. req.) (May 3, 2022) https://www.nytimes.com/2022/06/20/upshot/abortion-united-states-roe-wade.html (last updated June 27, 2022).
[8] Id.
[9] See generally Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301 (2006).
[10] Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301 (2006).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] https://www.law.cornell.edu/wex/commerce_clause
[16] https://www.law.cornell.edu/wex/commerce_clause
[17] Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301, 302 (2006).
[18] United States v. Lopez, 514 U.S. 549 (1995)
[19] Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301, 302 (2006).
[20] 529 U.S. 598 (2000).
[21] Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301, 302 (2006).
[22] 545 U.S. 1 (2005).
[23] Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301, 302 (2006).
[24] See Jordan Goldberg, Note, The Commerce Clause and Federal Abortion Law: Why Progressives Might Be Tempted To Embrace Federalism, 75 Fordham L. Rev. 301, 307 (2006).
[25] https://www.congress.gov/bill/117th-congress/house-bill/3755/text
[26] https://reproductiverights.org/the-womens-health-protection-act-federal-legislation-to-protect-the-right-to-access-abortion-care/
[27] Id.
[28] https://actforwomen.org/the-womens-health-protection-act/
[29] https://reproductiverights.org/the-womens-health-protection-act-federal-legislation-to-protect-the-right-to-access-abortion-care/; https://www.lawyerscommittee.org/senate-fails-to-advance-womens-health-protection-act-whpa/
[30] https://www.rpc.senate.gov/policy-papers/conservative-victories-at-the-supreme-court
[31] https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe
[32] https://www.guttmacher.org/united-states/abortion
[33] Claire Cain Miller & Margot Sanger-Katz, What Does the End of Roe Mean? Key Questions and Answers., N.Y. Times (sub. req.) (May 3, 2022) https://www.nytimes.com/2022/06/20/upshot/abortion-united-states-roe-wade.html (last updated June 27, 2022).
[34] Id.
