Congress can’t codify Roe: Here’s what it can do

Several days after the Supreme Court held that Roe v. Wade was no longer the law of the land on abortions, President Biden asked the Senate to create an exception to its filibuster rule to allow a vote on a bill to codify Roe.

While the sentiment is understandable, the president should instead refocus his attention on what Congress and the executive branch can do to lessen the devastation that the Dobbs v. Jackson Women’s Health Organization ruling is likely to produce. Indeed, if the president’s filibuster wish came true, it will likely cause more harm in the long run than what will follow from Dobbs.

Although many Americans believe that Congress has the power to enact laws in almost every field, that is a serious misconception. Under our system of government, the states are the basic source of lawmaking, and Congress is limited to the powers specifically enumerated in the Constitution. Those powers are significant, but far from unlimited, and do not include the ability to make abortions legal. Perhaps the broadest power of Congress is the ability to regulate interstate commerce, but even that was not expansive enough to pass majority muster regarding the individual mandate that was part of the Affordable Care Act, which at least dealt with the commercial subject of the payment for medical services. And since that decision in 2012, the court has become much less willing to support the broad use of federal powers.

For those in Congress and elsewhere who want to protect the right to an abortion in every state, the bad news is that there is no serious legal argument that Congress has that power. The only value in passing such a law is that it would ultimately lead to a decision by the Supreme Court declaring that Congress has no such authority.

Although disappointing in the short run, the good news is that such a ruling would also mean that, if anti-abortionists gain control of Congress and elect a president who would sign a bill banning abortions in every state, that law would also likely be unconstitutional. If Congress cannot codify Roe (however that would be translated into legal language), it should not be able to do the opposite and ban abortions in the states where they are now legal, which would truly be calamitous.

There are, however, several actions that Congress and the president can take that are within their powers and that will prevent anti-abortion states from blocking women trying to obtain legal abortions out of state. The first reaction of pregnant women in Texas when the court refused to enjoin the new six-week ban on abortions was to go to states where abortions are still lawful. The response of Texas and other states with bans or very strict limits on abortions is to try to make it a crime for women to travel to another state to obtain an abortion and also to make anyone who helps them to be guilty as well.

The good news here is that the court, in a decision dating back to 1975, ruled that a state cannot make it illegal to travel elsewhere to have an abortion, a position that Justice Brett Kavanaugh voluntarily embraced in his concurring opinion in Dobbs, which Attorney General Merrick Garland has promised to support and which Biden has directed HHS to address in his recent executive order.

But that may not be enough as states are proposing to enact laws like the one in Texas where the sole means of enforcement is by a private vigilante action seeking money damages, in order to prevent federal courts from enjoying their enforcement. Here is where Congress can step in by enacting a law plainly within its commerce clause power: make it a violation of federal law for any person (including law enforcement officials) to criminalize or impose a penalty on a woman who seeks to travel between states to obtain an abortion, as well as anyone who assists her. The Biden administration attempted to use this approach in the Texas case, but it was not successful because it did not have a law like this to back it up. The Ensuring Access to Abortion Act, which the House recently passed, is just such a law, although Senate passage is unlikely due to an almost certain filibuster.

Another safe haven for women seeking an abortion is to have them performed on military bases, federal prisons and other property under exclusive federal control. States may try to enforce their anti-abortion laws if women who do not live on federal property seek refuge on federal lands, so it would be important to include in the travel statute discussed above a similar provision covering women who have their abortions on federal property or in federal facilities

The Biden administration has already worked to make it easier for women to obtain emergency contraception. It should continue and expand such efforts, but it also should press for a statute that enshrines these changes into law so that future presidents cannot revoke them on their own. And as the president proposed to do in his July 8 executive order, and as his administration has done in suing Idaho for its six-week abortion ban, the federal government should strengthen protections for women who face emergencies in states where physicians question whether the exception for saving the life of the woman applies. He can also do more to push his agencies and Congress to provide protections against prosecutors’ efforts to surveil women through fertility apps and other trackers.

There are many other constitutional actions that federal agencies can take now or that Congress can enact that will alleviate the pain that Dobbs will inflict. But they do not include an effort to codify Roe, which is a good thing, because such efforts will not and should not succeed. More importantly, they will divert attention from the meaningful steps the Biden administration can and should legally take.

Alan B. Morrison is an associate dean at The George Washington University Law School where he teaches constitutional law; Sonia M. Suter is a professor of Law and Founding Director of the Health Law Initiative at The George Washington University.