The leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization signals that Roe and Casey are likely to be overruled in the coming months. This leak has sparked a range of political debates, from the effect it will have on the midterm elections, to the implications of the leak itself, to the next steps for abortion law. On the latter point, many on the right are breathing a sigh of relief that the issue of abortion can finally go “back to the states.”
Even pro-abortion advocates admit that Roe is bad law. Roe made abortion a constitutional right despite the following realities: Abortion is not a right mentioned or implied in the Constitution, there was no history in this nation of protecting abortion as a right, and the United States has a long history of laws prohibiting abortion. If the Supreme Court does in fact overrule Roe and Casey, it will be a good and healthy thing for the republic for moral, legal, and political reasons. The question, though, is who decides abortion policy if and when the Supreme Court overrules Roe and Casey? Does abortion policy simply return to the states? Or does Congress potentially have a role to play in abortion legislation in a post-Roe America?
Assuming the final decision in Dobbs does indeed overrule Roe and Casey, it is important to briefly summarize the facts and legal implications of the Dobbs case itself. In 2018, Mississippi passed a state law banning nearly all abortions after 15 weeks. An abortion facility in Mississippi filed a lawsuit claiming the state did not provide evidence that unborn children are viable at 15 weeks. Because current Supreme Court precedent prohibits states from banning abortion prior to fetal viability, the lawsuit claims that the state law conflicts with current Supreme Court precedent. Therefore, they argued, the Mississippi law is unconstitutional.
If the Court’s final decision in Dobbs overrules Roe and Casey, its reasoning will be that while the Mississippi statute is indeed in conflict with Supreme Court precedent, the statute can stand, because the previous Supreme Court precedent is erroneous and therefore must be overruled. It is crucial to understand that such a ruling would not necessarily “send the issue back to the states.” It would merely hold that the enshrining of abortion as a constitutional right was legally incorrect and is therefore overruled.
Conservatives must not conclude that abortion must inevitably become an issue for the states if Roe and Casey fall. While it is true that abortion would go back to the legislatures, there will be nothing in the Dobbs decision, and nothing in the United States Constitution, that precludes Congress from considering and passing pro-life legislation. If Congress is ready and willing to take up the abortion issue, there are at least two areas of the Constitution that give them grounds to try to do so: the 14th Amendment and the Commerce Clause.
The 14th Amendment to the Constitution, ratified in 1868, was passed primarily to ensure that no state could deny a particular class of persons “equal protection of the laws” or “deprive any person of life, liberty, or property, without due process of law.” The Equal Protection and Due Process clauses of the amendment were passed to attempt to protect emancipated African-American slaves from legal discrimination at the state level. But subsequent legal decisions as well as a common-sense reading of the amendment’s text make it clear that these sections of the 14th Amendment protect “any person,” not one particular class of persons. Importantly, the 14th Amendment is not merely the expression of an ideal; it has teeth. The final section of the 14th Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
From here, the argument is simple. Any person is protected by the Equal Protection and Due Process Clauses of the 14th Amendment. Modern science provides ample reasons to believe that the unborn child in its mother’s womb is a human being, a person. Therefore, no state can deny an unborn child in its mother’s womb the equal protection of the laws, or deny that child of life, liberty, or property without due process of law. If the Supreme Court ever rules that this language applies to unborn persons, then abortion becomes constitutionally prohibited. This argument was made to the Court in Roe and was acknowledged and dismissed by Justice Blackmun.
In the absence of such a court ruling, however, the 14th Amendment still gives to Congress the express power to make laws to enforce these protections. A pro-life Congress could pass legislation invoking the 14th Amendment, declaring that at a certain point (be it conception, implantation, or detection of a heartbeat), an unborn child is a person, and therefore cannot be denied due process or equal protection of the laws. Such a law would certainly be subject to legal challenge in the courts, and there is no shortage of pro-abortion advocates who would be willing to take up such a cause. Still, a pro-life Congress would have the legitimate option to use its enforcement power under the 14th Amendment in this way if it wished.
Apart from 14th Amendment-enforcement legislation, Congress could enact abortion legislation via the Commerce Clause. Article I, Section 8 of the Constitution gives Congress the power “to regulate commerce… among the several states.” Putting past abuses of this clause aside, the commerce power is explicit in the Constitution. Congress has express authority to regulate any kind of commercial activity that crosses state lines.
If Roe is overruled and states begin to pass abortion legislation, inevitably there will be instances of abortion being restricted in one state and accessible in a neighboring state. Congress could pass legislation prohibiting someone from crossing state lines in order to have an abortion in certain circumstances. In particular, Congress could prohibit an adult from taking a minor across state lines to help the minor procure an abortion. Given concerns about sex traffickers regularly transporting their victims to receive abortions, the latter proposal ought at least to be considered.
There have already been attempts by conservative states to prevent their residents from procuring abortions in other states where the practice remains legal. Those state laws will be challenged under the Dormant Commerce Clause doctrine, which basically holds that the Commerce Clause implicitly prevents states from passing laws that affect interstate commerce. This tension will lead to an interesting legal question about American federalism: Does the Commerce Clause grant Congress the authority to regulate interstate access to abortion? Does the Dormant Commerce Clause preclude states from prohibiting their residents from crossing state lines to procure an abortion? These questions need to be discussed, debated, and, in all likelihood, addressed by the courts.
The above arguments only suggest that Congress has the authority to regulate abortion, not the requirement to do so. There are prominent voices within the Republican Party who are willing to consider federal pro-life legislation. There are others who think it can or must be an issue for states to decide. But assuming the Dobbs decision does indeed overrule Roe and Casey, pro-life conservatives should know that there is a legitimate case for federal legislation against abortion. Republican federal lawmakers should have a real discussion on this issue and consider all the options at hand, rather than punt on the grounds that it is inherently “an issue for the states.”
If Roe falls, many (if not all) states will likely consider and pass some kind of abortion legislation. But as Hadley Arkes convincingly points out, the movement against Roe and the abortion regime is, at its center, about the protection of innocent lives, not the inappropriate exercise of “raw judicial power.” So while overruling Roe would be a great achievement both for the rule of law and the pro-life movement, conservatives must remember that their overarching goal is to stop abortions, not simply to send the issue back to the states.
For years, Republicans have been elected to federal office claiming to be boldly pro-life. Once the Dobbs opinion is officially released, they will likely have a constitutional basis to put that pro-life position into practice if they choose to do so. It will be interesting to see how conservatives in Congress react. Some will push for aggressive pro-life legislation, while others will insist that this ought to be decided at the state level. The conversation must be allowed to play out. Conservatives must acknowledge that there is a constitutional basis for passing pro-life federal legislation. If they choose to let it be decided solely by state legislatures, it should be known that that it will have been a choice, not an inevitability.
Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.