If Congress Bans Abortion, This New Deal Precedent Will Be at the Center of the Legal Battles

The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade (1973) and eliminated the constitutional right to abortion, has raised the possibility of a future Republican-controlled Congress seeking to ban abortion nationwide. If that happens, the resulting courtroom battles will likely center on a New Deal–era Supreme Court precedent that vastly expanded the scope of congressional power.

Under the Constitution, Congress possesses the authority “to regulate Commerce…among the several States.” At the time of the founding, this power was understood to be a limited one. As Alexander Hamilton explained in Federalist 17, the Commerce Clause did not extend federal authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” While Congress was permitted to regulate economic activity that crossed state lines, in other words, it was not empowered to control wholly intrastate economic undertakings.

That changed in the 1940s as a result of the federal government sanctioning an Ohio farmer named Roscoe Filburn for growing twice the amount of wheat that he was allowed to grow under the terms of the Agricultural Adjustment Act of 1938. Congress specifically invoked its power to regulate interstate commerce while enacting that New Deal law. The statute’s goal was to raise agricultural prices by limiting the supply of crops hitting the national market.

Filburn fought the law by arguing that his extra wheat was not subject to federal regulation because it never once entered the stream of interstate commerce. In fact, he pointed out, his extra wheat never even left his own farm. It was use