If Roe Gets Overruled, Abortion Policy may not be “Left to the States”
Last week’s oral argument in Dobbs v. Jackson Women’s Health Organization, showed there is a good chance that the Supreme Court will soon overrule, or at least severely limit abortion rights long protected under Roe v. Wade and subsequent precedents. If Roe does get overruled, many people assume that abortion policy will be “left to the states.” Some hope that, in that event, the temperature of the culture war over abortion might be lowered. Both red and blue state majorities could live under their preferred regimes. People who strongly oppose their state’s policies on the issue might be able to “vote with their feet” for alternatives, including by crossing state lines to get an abortion, and then returning home after it is done.
But that possibly happy scenario might well not occur. The reason is that the federal government could potentially get into the abortion regulation game. Current Supreme Court precedent leaves considerable potential scope for such regulation. That, precedent, in turn, could potentially be limited or even reversed, however. If so, abortion rights advocates might owe a debt to the unlikeliest of saviors: conservative Supreme Court Justice Clarence Thomas.
In the immediate aftermath of a reversal of Roe, the states really would be in control of developments. There is currently very little federal abortion legislation on the books. Red states could enact new restrictions and reactivate old ones blocked by Roe. Blue states could continue to permit abortion, and perhaps even expand its availability. Red-state residents seeking abortions would increasingly try to cross state lines to do so in more liberal states.
But this state of affairs could change if Congress decided to act. In my view, the text and original meaning of the Constitution do not give Congress any power to restrict abortion, with the exception of those performed in federal territories, such as the District of Columbia, and perhaps those that involve crossing state lines to access a commercial provider. But current Supreme Court precedent strongly suggests otherwise.
Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress’ power to regulate interstate commerce includes the authority to restrict almost any “economic activity,” so long as it has a “substantial effect” on interstate trade. And “economic activity” is defined very broadly to include anything that involves anything that involves the “production, distribution, and consumption of commodities.” That definition allowed the Court can use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the “consumption” and “distribution” of commodities, such as medical supplies. In addition, most abortions qualify as “economic” transactions because doctors, nurses, and others are paid to perform them.
One could argue that a federal law banning or severely restricting abortions isn’t “really” aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.
If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe, Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions – even if the feds enact a ban on such crossing. That ban might be more effectively enforced if
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