LEGISLATION HAS LIMITS: Can Congress resurrect Roe if it’s overturned? Well, it could try.

Democrats in Congress are calling on their colleagues to “codify Roe” in federal law. The Women’s Health Protection Act (WHPA) introduced by Rep. Judy Chu (D-Calif.) in June 2021 would do just that. Here’s what you need to know. . . .

When the Civil Rights Act of 1964 came before the Supreme Court, even the liberal justices noted the awkwardness of arguing over whether hamburger meat crossing state lines meant a restaurant such as Ollie’s BBQ in Alabama had to allow Black patrons to sit at the counter, or whether an Atlanta hotel near an interstate highway had to allow Black guests because its travelers moved between states. Still, the Supreme Court unanimously upheld the Civil Rights Act, giving the green light to Congress to use its commerce power to enforce civil rights.

This time around, Congress would again define access to abortion as a case of interstate commerce. People travel across state lines to procure abortion services; medical equipment that provide abortions all moves in interstate commerce; and licensing, training and education for abortion providers all involve interstate travel and commerce. Proponents hope that by codifying Roe in this way, a new federal law guaranteeing the right to abortion would survive the Supreme Court’s inevitable review.

But the Supreme Court has narrowed Congress’s commerce power significantly since the mid-1990s. . . .

It’s possible that the Supreme Court would choose to uphold a WHPA, if passed and signed. Even with these unfavorable rulings, there is ample Supreme Court precedent to support Congress’s regulating abortion through interstate commerce, as law professor Julian Mortenson outlines.

But there is another reason that Democrats in Congress may not want to codify Roe through legislation.

If the Supreme Court rules that Congress has the power to protect abortion through legislation, Congress also would have the power to prohibit abortion through legislation. As Chief Justice John Marshall famously concluded in an 1824 Commerce Clause case, the power to regulate necessarily includes the power to prohibit.

Ultimately, any victory for abortion rights the Democrats might claim with the WHPA would be temporary, lasting only until Republicans regained control.

Congress could also try rooting a statute in the 14th Amendment under its Article 5 power to pass “appropriate legislation” to enforce its guarantees. The problem is, Congress gets to “enforce” only those rights that exist under the Constitution. As the Court held in City of Boerne v. Flores, Congress doesn’t get to define those rights, which means Congress can’t use its 14th Amendment powers to reverse the Court. So they could try.

Meanwhile, Dave Kopel and I were arguing 25 years ago that Congress’s commerce power doesn’t reach abortion.