I am surprised that no one has addressed the obvious "elephant in the room": Congress currently has no authority to "codify Roe." [See, e.g., Congressional Research Service, “Congressional Authority to Regulate Abortion”, CRS Legal Sidebar, July 8, 2022; Alan B. Morrison and Sonia M. Suter, “Congress Can’t Codify Roe: Here’s What It Can Do”, The Hill, August 8, 2022; William H. Hurd, “Does Congress Have the Authority to Codify Roe?”, Bloomberg Law, May 17, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states' authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law "the Supreme Law of the Land" and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that [t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including ... the Due Process Clause [Section 1] of the Fourteenth Amendment." [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.]
It appears, therefore, that one of two things must occur before Congress can establish a uniform, national right to abortion:
1. The SCOTUS reverses Dobbs (not likely given its current conservative majority)
2. A constitutional amendment is adopted granting Congress the authority to do so.
Unfortunately, a constitutional amendment must be passed by a two-thirds vote of both the House and Senate, followed by ratification of three-fourths (38) of the states.
The only other option I know of (which would require suspending the filibuster) is to retroactively waive the 1982 deadline for ratification of the Equal Rights Amendment. (The ERA simply states “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) This is the approach embodied in House Joint Resolution 25 and Senate Joint Resolution 4. Even if the retroactive suspension were to pass constitutional muster, there would still be the issue of whether “equality of rights under the law” irrespective of sex could be interpreted to extend to the right to bodily self-determination and autonomy.
There is good reason to proceed cautiously with enacting abortion rights through federal statute. The actions of one session of Congress cannot bind those of subsequent sessions. Therefore, if one session of Congress were to find a valid constitutional authority to legislate a national right to abortion, a subsequent session could potentially rely on the same authority to repeal the statutory right to abortion and enact in its place a national prohibition on abortion. Clearly, this would be much worse than the status quo.
Rather than attempting to "codify Roe," a better path to re-establish a national right to abortion may be for a member of a religion that prioritizes absolutely the life of the woman over that of her unborn fetus (as do some sects of Judaism) to successfully challenge a state abortion ban as violative of the First Amendment's Establishment Clause.
Thank you, Ray, for your long and meaty comment. I'm methodically working my way to this conclusion (and may do a separate post on Presidential power) but the journey is extremely important since so few Americans understand the basis for Roe in the first place. (Or why efforts to pass federal legislation have failed in the past, despite having sufficient support to invoke cloture). The "right to privacy" found in the Bill of Rights and 14A via substantive due process undergirds every sex-related SCOTUS decision and, unfortunately, Dobbs didn't overrule SDP, so those decisions stand. It just reasserted the two-part test for whether the "liberty" component of 14A includes certain substantive rights, which test is judicially created as well. It's curious that the two "rights" that fail the tradition and ordered liberty test involve death: abortion and physician assisted suicide. That said, the entire doctrine of SDP is garbage that needs to be thrown on the ash heap of history. If we'd re-recognize natural law, a lot of this would be cleaned up. Thanks again for your thoughtful reply. I appreciate it.
We need to PUSH President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.
Excellent analysis from an historical perspective. I covered the abortion issue as a journalist beginning in 1967. I saw it happen and reported on it. Your information is spot on. There are few journalists today who were even alive at that time, so your 'history lesson' is most important. Thank you!
Oohhh ... we need to have that conversation and share it with my subs. So much happened in the years between Griswold and Roe vis-a-vis they new "right" that it's mind boggling. This is what happens when social Darwinism replaces the natural law underpinnings of the law. It's such a weird history. Reading these criminal statutes some 50+ years after Roe, they're simply representations of our founding philosophy - we're a nation of laws, not of men, and we respect each other simply because we're human. Thanks for the feedback!
I am surprised that no one has addressed the obvious "elephant in the room": Congress currently has no authority to "codify Roe." [See, e.g., Congressional Research Service, “Congressional Authority to Regulate Abortion”, CRS Legal Sidebar, July 8, 2022; Alan B. Morrison and Sonia M. Suter, “Congress Can’t Codify Roe: Here’s What It Can Do”, The Hill, August 8, 2022; William H. Hurd, “Does Congress Have the Authority to Codify Roe?”, Bloomberg Law, May 17, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states' authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law "the Supreme Law of the Land" and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that [t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including ... the Due Process Clause [Section 1] of the Fourteenth Amendment." [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.]
It appears, therefore, that one of two things must occur before Congress can establish a uniform, national right to abortion:
1. The SCOTUS reverses Dobbs (not likely given its current conservative majority)
2. A constitutional amendment is adopted granting Congress the authority to do so.
Unfortunately, a constitutional amendment must be passed by a two-thirds vote of both the House and Senate, followed by ratification of three-fourths (38) of the states.
The only other option I know of (which would require suspending the filibuster) is to retroactively waive the 1982 deadline for ratification of the Equal Rights Amendment. (The ERA simply states “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”) This is the approach embodied in House Joint Resolution 25 and Senate Joint Resolution 4. Even if the retroactive suspension were to pass constitutional muster, there would still be the issue of whether “equality of rights under the law” irrespective of sex could be interpreted to extend to the right to bodily self-determination and autonomy.
There is good reason to proceed cautiously with enacting abortion rights through federal statute. The actions of one session of Congress cannot bind those of subsequent sessions. Therefore, if one session of Congress were to find a valid constitutional authority to legislate a national right to abortion, a subsequent session could potentially rely on the same authority to repeal the statutory right to abortion and enact in its place a national prohibition on abortion. Clearly, this would be much worse than the status quo.
Rather than attempting to "codify Roe," a better path to re-establish a national right to abortion may be for a member of a religion that prioritizes absolutely the life of the woman over that of her unborn fetus (as do some sects of Judaism) to successfully challenge a state abortion ban as violative of the First Amendment's Establishment Clause.
Thank you, Ray, for your long and meaty comment. I'm methodically working my way to this conclusion (and may do a separate post on Presidential power) but the journey is extremely important since so few Americans understand the basis for Roe in the first place. (Or why efforts to pass federal legislation have failed in the past, despite having sufficient support to invoke cloture). The "right to privacy" found in the Bill of Rights and 14A via substantive due process undergirds every sex-related SCOTUS decision and, unfortunately, Dobbs didn't overrule SDP, so those decisions stand. It just reasserted the two-part test for whether the "liberty" component of 14A includes certain substantive rights, which test is judicially created as well. It's curious that the two "rights" that fail the tradition and ordered liberty test involve death: abortion and physician assisted suicide. That said, the entire doctrine of SDP is garbage that needs to be thrown on the ash heap of history. If we'd re-recognize natural law, a lot of this would be cleaned up. Thanks again for your thoughtful reply. I appreciate it.
We need to PUSH President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.
Excellent analysis from an historical perspective. I covered the abortion issue as a journalist beginning in 1967. I saw it happen and reported on it. Your information is spot on. There are few journalists today who were even alive at that time, so your 'history lesson' is most important. Thank you!
Oohhh ... we need to have that conversation and share it with my subs. So much happened in the years between Griswold and Roe vis-a-vis they new "right" that it's mind boggling. This is what happens when social Darwinism replaces the natural law underpinnings of the law. It's such a weird history. Reading these criminal statutes some 50+ years after Roe, they're simply representations of our founding philosophy - we're a nation of laws, not of men, and we respect each other simply because we're human. Thanks for the feedback!