Bloomberg Law
May 17, 2022, 8:00 AM

Does Congress Have the Constitutional Authority to Codify Roe?

William H. Hurd
William H. Hurd
Eckert Seamans Cherin & Mellott LLC

After the leaked draft of Justice Samuel Alito’s abortion decision, supporters of Roe v. Wade are again pressing to “codify” that 1973 decision by writing its basic provisions into a federal statute. The idea is to preserve existing abortion rights nationwide without having to rely upon the U.S. Supreme Court’s interpretation of the Constitution.

Efforts to advance one version of such a bill failed in the Senate on May 11. But assuming that such a statute is eventually enacted, it may face court challenges claiming that the U.S. Constitution does not give Congress authority to enact such a law.

Roe v. Wade and the 14th Amendment

Supporters of a Roe statute say the authority lies in the 14th Amendment, which allows Congress to enforce the amendment’s liberty guarantees by “appropriate legislation.” But the Supreme Court has previously distinguished between legislation to enforce constitutional rights and legislation to define those rights. The first is a job for Congress, the second is not. Defining constitutional rights is the job of the courts.

The Supreme Court made this point in 1997 in City of Boerne v. Flores. At issue was the Religious Freedom Restoration Act (RFRA), a law passed by Congress after a Supreme Court decision limiting the First Amendment’s free exercise guarantees. In passing the RFRA, Congress said it was acting under the 14th Amendment to restore the constitutional meaning of free exercise, and that its legislation overrode any conflicting state or federal law.

The Supreme Court disagreed. Under the separation of powers, Congress had no authority to interpret constitutional rights differently than the courts. To be sure, Congress could make the RFRA override other federal laws. That was just Congress acting within its own area of authority. But, insofar as the states were concerned, the Supreme Court said that the RFRA was unconstitutional.

If Congress passes a Roe statute, it could easily suffer the same fate as the RFRA. It will likely be valid in areas where Congress is the ultimate legislature (e.g., District of Columbia, Puerto Rico, Virgin Islands, and the Pacific island jurisdictions), but probably not in the 50 states.

Congress’ Power to Regulate Interstate Commerce

Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

The court said that the VAWA intruded into the states’ traditional police powers and that it could not be justified as a regulation of commerce. The Supreme Court could reach same result if Congress codifies Roe.

The court could reason that such a statute intrudes into the states’ traditional police powers (which a decision overturning Roe would effectively restore), and that abortions are not economic activities that substantially affect interstate commerce. To be sure, a state’s abortion laws may affect whether some people choose to migrate to (or from) that state, but the same could be said for many state laws, especially tax and education laws.

Nationalizing abortion laws on the theory that uniformity removes an obstacle (or incentive) to interstate migration would open the door to federally mandated uniformity in these other areas as well. The Supreme Court may conclude that basic principles of federalism require keeping that door shut.

What Congress Can Do

There is little doubt that Congress could enact laws prohibiting states from interfering with the right of women to travel out of state for procedures not available in their home states. But insofar as Congress may seek to trump state abortion restrictions, applicable within the state’s own borders, the Supreme Court may view any such federal statute as unconstitutional. By the same reasoning, of course, Congress would have no Commerce Clause authority to enact a law banning all abortions nationwide.

None of this is to say that abortion soon will be unlawful in all the states. Not even the leaked draft opinion comes close to saying that.

If the leaked draft correctly foreshadows the Supreme Court’s final decision, state legislatures will enact their own laws one way or the other. Some have already done so in anticipation of a Supreme Court decision overturning Roe.

Likewise, while not yet widely discussed, state courts will interpret their state constitutional provisions, whether to mirror Roe, to strike a different balance, or to leave the issue entirely up to their state legislatures. In any event, if authority over abortion laws is returned to the states, the debate between pro-life and pro-choice Americans will be sure to continue.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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William H. Hurd is a Richmond, Va.-based attorney with Eckert Seamans and specializes in federal and state appellate litigation, complex and high-stakes issues, and government and internal investigations. He served as the first solicitor general of Virginia (from 1999-2004), and has represented businesses under investigation by state attorneys general across the nation.