Will the Supreme Court uphold a nationwide ban on abortion?
Professor Laurence Tribe thinks so: If the GOP takes Congress, he says, "abortion will not be legal in America."
With the overturning of Roe v. Wade, both sides of the abortion issue have been galvanized. Democrats, aghast at the removal of a heretofore fundamental right, are contemplating a federal law protecting the right to an abortion nationwide — no matter how red a woman’s state is. On the other side, many Republicans, having succeeded beyond their wildest dreams at the highest court, have their eye on the ultimate prize: a nationwide abortion ban, codified by Congress.
If they manage to retake the House of Representatives, Republicans are considering all sorts of abortion bans. Some prefer banning it at 20 weeks. Some at 15. The “Heartbeat Protection Act” would ban abortion after around 6 weeks. And over 160 House Republicans support the “Life at Conception Act.”
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After the Supreme Court justices and Congressional Republicans so loudly celebrated the Dobbsian return of The Abortion Question to the states (“where it belongs”), would Republican lawmakers now brave the inevitable charges of hypocrisy as they push for a nationwide law after all? Was their “states’ rights” argument just a convenient excuse to get the result they wanted in the first place? Or do they ascribe to Justice Louis Brandeis’s conception of states as laboratories of democracies, where the best ideas win?
Perhaps those are questions better suited to philosophers. What is clear is that, far from settling the matter, June’s court decision has set in motion a blizzard of proposed legislative activity pitting the rights of women against the rights of the unborn — and, depending on which direction Congress goes, potentially trampling the laws of half the states in the country, in either direction.
Constitutional scholars are worried.
From conversations I’ve had recently with legal scholars, it’s likely that Congress can make a strong case that it has the power to pass a nationwide abortion law — in either direction. The question is: What will happen when that law gets to the Supreme Court? And, more importantly, would the court apply precedent in a neutral manner, regardless of whether they’re analyzing a nationwide abortion ban or a nationwide codification of Roe v. Wade?
Speaking to Unprecedented, Harvard Professor Emeritus Laurence Tribe — one of the most renowned constitutional scholars in modern American history — painted a grim picture.
Let us consider first a hypothetical codification of abortion rights. Congress could make a strong argument that they have the power to do this, pinning their authority on the Commerce Clause, which lets Congress pass laws regulating interstate commerce.1 “Abortion is treated as an economic procedure, despite the fact that it obviously involves serious issues of bodily integrity,” Tribe said.
But Tribe thinks the current line-up of justices might not find the Commerce Clause expansive enough to uphold a codification of abortion rights. Tribe pointed to a concurrence written by Justice Clarence Thomas in a 2007 decision that upheld a partial-birth abortion ban. Thomas agreed with that decision, but explicitly noted that “whether the [ban] constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the court.”
As far as Thomas is concerned, “it’s an open question whether Congress could enact this law,” Tribe explained. So if Congress were to codify Roe v. Wade, Thomas would disagree that it’s within Congress’s commerce power, Tribe predicted. “He would probably be able to persuade Alito, Gorsuch, Barrett, maybe Kavanaugh. And the law would, therefore, in all likelihood as the court is currently composed, be struck down.”
Tribe suspects the court would be careful not to strike down a pro-abortion law on the grounds that it’s an attempt to overturn what the court said in Dobbs. “The authors would be clever enough not to couch it as an anti-Dobbs decision,” Tribe divined. “They would simply couch it as a new federal standard for medical procedures affecting pregnancy.”
Let us now consider the alternative (and here’s where things get scary). Suppose the midterm elections see a Red Wave giving control of Congress entirely to the GOP. Suppose the House and Senate pass a nationwide abortion ban. Suppose a new president signs it into law, and it goes to the Supreme Court.
Both a law banning abortion and a law codifying Roe v. Wade “would represent essentially identical exercises of the commerce power,” Tribe says. “But the five right-wing justices that now control the court have no trouble with hypocrisy. They would almost certainly uphold a nationwide ban on abortion.”
The law would also be challenged on the grounds that it violates the rights of women in the blue states whose constitutions protect their bodily autonomy. “The Supreme Court’s response would be: ‘Too bad. Under Article VI, federal law is supreme,’ ” Tribe said, referencing the Constitution’s Supremacy Clause.
“So what we now confront is a horizon with a kind of double standard for what the commerce power would let Congress achieve, and with a fairly clear outcome — unless the composition of the court is changed — that abortion will not be legal in America, even in the blue states, unless the Democrats hold on to the House and hold on to the Senate.”
“The five right-wing justices that now control the court have no trouble with hypocrisy. They would almost certainly uphold a nationwide ban on abortion.” — Laurence Tribe
Tribe — who, as a member of the Presidential Commission on the Supreme Court, has spent the last year studying the court more intensively than any other time in his 50 year career — assured me that he is neither jaded nor cynical, but simply “realistic.” (Click here for a full transcript of our conversation.)
And he isn’t the only one who worries about a future in which the justices put personal preferences over neutral and principled judicial interpretation.
“It is worth asking whether the conservative Supreme Court would give the same legal treatment to opposing congressional laws prohibiting and permitting abortion nationwide,” said Richard Albert, director of constitutional studies at the University of Texas.
“It should, and I expect that it would,” he told Unprecedented. “However, if the court treated these two laws differently — upholding one and invalidating the other — that would spell the end of constitutional democracy in the United States because the country would no longer have a court of law as its highest judicial body.”
Asked how America’s highest court might respond to a nationwide abortion ban, Robert Post, a constitutional scholar at Yale Law School, was succinct. “It depends of course on the court,” he said. “What do you think the political priors of this court are?”
Not everyone has lost faith in the court.
Perhaps Larry Tribe is being alarmist. Perhaps the perceived politicization of the court is just an illusion. Perhaps the six justices in the majority will apply the law neutrally, as justices are supposed to, instead of bringing their own preferences into play. Perhaps they will heed the words of Chief Justice John Roberts during his 2005 confirmation hearing:
“Judges are like umpires. Umpires don’t make the rules, they apply them. … I will decide every case based on the record, based according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
As vast as Congress’s Commerce Clause power is, there are limits. Congress failed in its early-nineties attempts to use the clause to shoehorn through laws banning guns around school zones, or to allow battered women to sue their attackers in federal court.
Professor Albert of Texas Law thinks any Commerce Clause argument would be a “dead end,” he said. “Everything I know about the Court’s Commerce Clause case law tells me that the Court would quite likely strike down that law as exceeding Congress’s power.”
Just look at what happened with the Affordable Care Act, he said. While the Supreme Court did okay the law under Congress’s power to regulate by taxation, it wouldn’t allow Congress to rest Obamacare on the Commerce Clause — reasoning that you can’t regulate actions of those who choose to not participate in a market.
“If the 2012 conservative majority on the Court said no to passing Obamacare using the congressional commerce power, surely the 2022 conservative supermajority on the Court will say the same thing to passing a law either prohibiting or permitting abortion using the same source of constitutional authority,” Albert said.
The conservative majority in Dobbs repeatedly said that abortion is a states’ rights issue, said Penn State Law Professor Michael Foreman. “If the Court is true to its words and the justices in the majority have any integrity they would have to strike down the ban,” Foreman told Unprecedented.
“Okay, maybe with Justice Thomas dissenting, for whatever reason.”
Unprecedented would also like to thank Professors Barry Friedman of the NYU School of Law and Steven Collis of the University of Texas School of Law for their assistance in understanding the constitutional issues at play.
As long as lawmakers can prove that there’s a link to interstate commerce, a court is likely to bless the legislative act — especially in this case, since abortion is no longer protected as a fundamental right and is therefore much easier to regulate.
Lawyers might recall learning of Wickard v. Filburn, which taught us that the Commerce Clause can reach even individual farmers who grow wheat for their own personal use (because if every local farmer grew wheat for his own use, in the aggregate, that would have a major impact on interstate commerce). The court used similar reasoning to uphold federal regulation of marijuana in 2005 — even when grown locally for personal use.
But it’s likely easy enough to argue that a sufficient nexus between abortion and the economy exists for the Commerce Clause to apply.