With the recent Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, there has been a push for Congress to codify women’s abortion rights into federal law. President Joe Biden verbally signaled before the midterm elections that he would try to get a federal law protecting abortion rights passed through the legislative branch, stating, “If you give me two more senators in the United States Senate, I promise you, I promise you, we’re going to codify Roe and once again make Roe the law of the land.” Despite Biden’s promise to support this legislation, Congress most likely does not have the constitutionally endowed power to uphold this law, even if a pro-choice majority was elected.

Dobbs v. Jackson Women’s Health Organization overruled decades of jurisprudence justifying abortion as a “quasi-fundamental right.” Beginning with Roe v. Wade, the Court declared that abortion was protected under the penumbras of privacy and the Fourteenth Amendment. Eventually, in 1991, Planned Parenthood v. Casey contradicted the previous ruling by stating that abortion was not considered completely fundamental and put forward the undue burden test instead of Roe’s trimester framework. This year, the Court has decided that abortion is not protected under those penumbras of privacy nor is it protected by the Fourteenth Amendment. In this ruling, they have officially determined that abortion is not considered a fundamental right protected by the Constitution because the Constitution does not make any mention of abortion. Therefore, it is up to the states to decide abortion legislation. 

Women’s rights, which are rarely enumerated explicitly in the Constitution, have often fallen outside Congress’ purview. In fact, the United States Constitution did not originally  mention women’s equality or women’s positive rights. The Constitution works under a framework of negative rights which dictate what the government is not allowed to do; for example Congress cannot freely abridge free speech as it is considered a fundamental right under the First Amendment. The few times in which the Constitution specifically mentions equality or women’s rights are the Nineteenth Amendment—granting women suffrage—and the Fourteenth Amendment—granting equal protection under the law. Although the latter amendment is utilized for quandaries regarding sex discrimination, it does not explicitly guarantee rights that are essential to women’s equality such as reproductive rights. 

To make federal laws to protect against discrimination, including sex discrimination, Congress often has to claim the power of the commerce clause. The commerce clause states that Congress has the ability “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Essentially, the legislative branch has complete authority over interstate commerce. 

In cases such as Heart of Atlanta Motel, Inc. v. United States, the Supreme Court affirmed the constitutionality of the Civil Rights Act of 1964 based upon commerce clause powers. To prohibit private discrimination, fundamental rights that can be found in the Fourteenth Amendment can often be protected by Congress if the legislative branch can prove a connection to interstate commerce. The majority of hospitals and clinics in the United States are privately owned, so in order for Congress to exert authority over them in regards to abortion they would have to claim the commerce clause. 

There has been a tumultuous relationship between the power of the commerce clause and Supreme Court jurisprudence. From 1937 to 1995, the Court did not strike down any commerce clause case on the grounds of Congress exceeding its bounds. However, what broke this long-standing precedent was the case of United States v. Lopez; the Court determined that the Guns-Free School Zone Act was not closely related to interstate commerce and struck down the act as unconstitutional.

Just five years later, the United States v. Morrison case further restricted this power of Congress. In Morrison, the constitutionality of the Violence Against Women Act (VAWA) was brought into question. Part of VAWA promised those affected by gender-motivated violence respite in the form of a federal civil remedy. Ultimately, the court decided that this was too far removed from Congress’s power over interstate commerce. 

The justices who dissented from the majority decision represent the difficulty of developing a coherent judicial philosophy concerning the commerce clause. Justice Breyer, one of the dissenters, wrote that cases like Morrison “illustrate the difficulty of finding a workable judicial Commerce Clause touchstone.” Furthermore, Justice Souter argued that there is clear evidence—in the form of research—that violence against women impacts interstate commerce.

The newly proposed law—titled the Women’s Health Protection Act (WHPA) and supported by Democrats—aims to “put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.” Through this framework, WHPA is mirroring the Civil Rights Act of 1964. As seen in Heart of Atlanta Motel v. United States, Congress plans to hinge their authority regarding discrimination through the commerce clause. Considering the Supreme Court has denied abortion’s tie to the Fourteenth Amendment and limited commerce clause powers regarding women’s rights in United States v. Morrison, it seems as if Congress does not have jurisprudential backing behind its attempt to codify Roe, at least with this Supreme Court bench. Since Dobbs v. Jackson denies abortion as a fundamental right constitutionally, this topic is not considered as important as other forms of discrimination protected by the Fourteenth Amendment. 

Congress’ ability to constitutionally pass federal abortion legislation entirely depends on the makeup of the Supreme Court. Once new Justices enter the court it is entirely possible that the Court will enter an ideological shift in favor of abortion rights and Congress’s authority in the matter. The Court, which has received four new appointments in the past five years, is unlikely to change ideologically any time soon. As seen with the history of rulings regarding commerce clause powers, those who are on the court often dictate a longstanding philosophy. The Court during the New Deal was specifically liberal in their interpretation of the commerce clause while the Rehnquist Court, beginning in the 1990s, was more conservative in their estimation of what Congress could do with these powers.

Challenging a court that has not had an ideological shift often results in Congress’ legislation being deemed unconstitutional. In Employment Division of Oregon v. Smith, the Supreme Court ruled that laws which were generally applicable and infringed upon the right to free exercise of religion were valid. Just three years later, Congress—which disagreed with this ruling—created the Religious Freedom Restoration Act, which the Court subsequently struck down in City of Boerne v. Flores. Through this decision, the majority essentially claimed that Congress did not have greater authority than the Court to decide how to interpret rights enumerated in the Constitution.

The Supreme Court has struck down retaliation by Congress in other cases, such as Dickerson v. United States. Despite legislative attempts to circumvent the Miranda warnings, the Supreme Court stood strong in its decision in Miranda v. Arizona, and the case that solidified the practice of alerting detainees of their rights to remain silent and obtain counsel. 

So is Congress able to pass federal abortion legislation? It can try! It is doubtful whether the legislature would successfully uphold any abortion legislation until the Supreme Court has an ideological shift on reproductive rights.