Codifying Abortion Rights In A Federal Law Is Not A Silver Bullet

In the wake of this week’s leaked draft opinion showing that a majority of Supreme Court justices voted to overturn abortion rights, activists and alarmed Democrats alike have renewed calls for Congress to protect abortion access with a federal law. 

The call to “codify Roe” has become shorthand for passing the Women’s Health Protection Act, which passed the House last year. The WHPA would bar “a prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure.”

It would also, among other things, prevent state governments from hindering providers’ prescription of abortion-inducing drugs, mandating delays in treatment and forcing providers to jump through superfluous hoops to administer the procedure.

The immediate, glaring problem with passing such legislation is that Democrats lack the votes to either overcome the 60-vote filibuster threshold, to get rid of the filibuster altogether or to create some kind of filibuster carveout, which would be necessary to pass the legislation. 

Even if Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) could be persuaded to change their very baked-in support of the filibuster, the caucus would still likely lack the votes needed to pass the bill: both Manchin and Sen. Bob Casey (D-PA) characterize themselves as “pro-life.” 

“I feel like we’re talking about if dancing babies on Mars are fun to watch,” David Cohen, a professor at Drexel University’s Thomas R. Kline law school, told TPM. “It’s not gonna happen. There are not 50 senators who support getting rid of the filibuster, let alone 50 who support abortion rights.” 

But even beyond the immediate Senate obstacles, there would be considerable risk attached to passing such a law, if, for instance, Democrats upset expectations and obtain the necessary majorities to do so after the midterms. First, there’s the chance that the Supreme Court, especially this Supreme Court, could overturn the law and rule that Congress doesn’t have the power to guarantee abortion access across the country. Such a ruling could dramatically curtail Congress’ power to regulate a whole swath of industries.

If the Court upheld the law, and acknowledged that Congress does have the power to regulate abortion, such a ruling could be a double-edged sword for Democrats. It would allow the next Republican trifecta to repeal the law, and potentially replace it with one that outlaws abortion nationwide. 

Congressional Power 

The WHPA primarily derives its power from Congress’ ability to regulate commerce between states. 

“Abortion restrictions substantially affect interstate commerce in numerous ways,” it reads. “For example, to provide abortion services, health care providers engage in interstate commerce to purchase medicine, medical equipment, and other necessary goods and services.”

But that the Supreme Court will sign off on this derivation of congressional power is less than assured. Some conservatives dislike this interpretation of the commerce clause. 

“For the most part, historically speaking, the courts have allowed Congress quite a lot of leeway with regard to the commerce clause,” Alisa Von Hagel, political science professor at the University of Wisconsin-Superior, told TPM. “But there are indications that they are more narrowly construing Congress’ power.” 

Abortion care’s effect on other states and interstate commerce should mean that it easily falls within the category that Congress can govern, Julian Davis Mortenson, professor at the University of Michigan Law School, told TPM. A law legalizing abortion across the country would result in more people being hired and paid to staff clinics and provide treatment, the growth of national organizations that facilitate women obtaining the procedure, even an uptick in purchases of medical equipment needed. 

“It’s hard to overstate how radical it would be to change commerce clause doctrine in a way that would make this unconstitutional,” Mortensen said.

A complicating factor inherent in such a law would be how the federal requirements interplay with state ones. Specifically, Congress would have to include in the law that its requirements preempt state ones — thus overriding red state restrictions on the procedure. 

That would likely invite lawsuits from angry states, but again, the law would seem to fall squarely within Congress’ power. 

“If Congress is allowed to regulate business, it’s allowed to preempt all state regulations that undercut federal regulation,” Mortensen said. “The individual parts of this law are all utterly uncontroversial.” 

But that still leaves the intractable problem of the Court. What if this right-wing Supreme Court doesn’t care that regulating abortion aligns neatly with what Congress has traditionally had the power to do? As even apolitical Americans are quickly learning, there are no guardrails on the all-powerful body of nine. If they want to override the case law, nothing is stopping them.

That possibility risks more than a Democratic defeat at court. If the Supreme Court made a broad ruling limiting Congress’ power under the commerce clause of the Constitution, it would reverberate throughout all kinds of areas of life that the legislature regulates, from health care to the environment. It could give the Court an opening to drastically reduce the scope of Congress’ power. 

If the Supreme Court, on the other hand, upheld an abortion rights law, risk still abounds. The same factors that give Congress the power to make abortion accessible nationwide would give the body the power to ban it. 

The next time Republicans achieve a trifecta — the White House and both chambers of Congress — they’ll likely come under immense pressure by the hardcore anti-abortion contingent of their base to pass a nationwide prohibition. 

Still, there are arguments to do it anyway. Perhaps the strongest is that a law like the WHPA, with its provisions specifically written to beat back and preempt common red-state strategies that make abortions extremely difficult to get, is simply stronger in its specificity than the Supreme Court’s decision in Roe. 

“If a statute gets specific, it can be much more powerful than a constitutional right,” Cohen said. “We have seen from the case law around Roe in general that it doesn’t protect much beyond the general right.” 

Looking Back, And Forward

Senate Majority Leader Chuck Schumer (D-NY) said that he’ll soon hold a vote on the WHPA, though it’ll certainly be filibustered. The White House is reportedly scrambling to figure out pathways to protect abortion access through executive action.

But as the black-and-white reality of the coming end of abortion rights came into focus, critics have lobbed recriminations, many toward Democrats, wondering why they didn’t move faster, sooner to avert catastrophe. 

It’s true that abortion has long galvanized Republicans in a way it hasn’t Democrats, and that Republicans have undertaken a years-long campaign to chip away at abortion access until they got the Court they needed to likely do away with the right altogether. 

“For the most part, Democrats generally danced around the issue and didn’t really want to talk about it — that goes for policy makers as well as their constituents,” Von Hagel said. “It’s not a comfortable topic for many people. In the ‘90s under Clinton, the tagline was ‘safe, legal and rare.’”

The parties were also, in the past, less rigidly sorted by political ideology, meaning that Democrats had to contend with many more red state, anti-abortion lawmakers in their midst. Even as recently as the Affordable Care Act negotiations, a few red state Democrats almost torpedoed the whole package based on abortion coverage. Democrats have frequently lacked the necessary votes to pass abortion protections, even if their leadership had had the will.

“It just hasn’t been a salient, driving issue for the large majority of Democrats,” Von Hagel said. “There hasn’t been much initiative to push something like this at the federal level.”

The same is not true for Republicans. Especially in the mid-’90s, anti-abortion activists got organized and pumped money to marketing firms to help expand their message. Republican lawmakers proposed a flurry of anti-abortion riders on things like appropriations bills, but had trouble passing sweeping legislation on the federal level. 

They turned instead to the states, focusing on the red ones, where nearly all abortion restrictions have been generated, and where Republicans have successfully gerrymandered their way to near-permanent dominance. 

A lingering question, one that will determine whether Democrats ever get the majorities they need to legislate abortion protections at all, is whether that dynamic will swap now that the Court is about to deliver Republicans a win decades in the making. 

“A very possible silver lining here is that this could result in better abortion protections in the long term,” Cohen said. “But while that may be true, you’re still sacrificing people’s health and wellbeing in the meantime.”