How could Roe v. Wade be codified by federal legislation?

[AGA]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

[Donerail]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

[brucejoel99]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

That's not to say, however, that if Congress did pass a law statutorily codifying Roe/Casey, then such a law would fare well in the courts, given that Thomas/Alito would presumably opine that Congress has no authority to pass such a law pursuant to their interstate commerce powers (probably by pointing to Roberts' own words & saying that if Congress can't force people to purchase health insurance pursuant to interstate commerce, then it sure as hell can't invoke the same to try & mandate states to provide healthcare, never mind the actual precedential nonsense that such a shift in jurisprudence would be predicated upon), & since the current SCOTUS is evidently inclined to follow the Thomas/Alito approach to the Constitution over the O'Connor/Kennedy approach, it's a big if as to whether the current Court would uphold a law passed by Congress to statutorily codify an American entitlement to access health-care pursuant to their commerce power.

Granted, there's other ways: Congress can create a civil right &/or invoke its 14th Amendment Section 5 powers to enforce equal respect for such a privilege of citizenship across the land. Indeed, I'd go so far as to argue that Congress has been far too timid in its exercise of the powers which were granted to it by the Reconstruction Amendments, given their original intent to grant Congress far more power than the Court was willing to recognize both during Reconstruction & since, but of course, such an unprecedented extension of Congress's 14th Amendment prerogatives would be a Pandora's box, openly inviting a future conservative Congress to federally assert & enforce fetal personhood rights under the 14th Amendment.

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Federal legislation and a SCOTUS ruling did override state's rights with the "partial birth" abortion ban.

[brucejoel99]

Federal legislation and a SCOTUS ruling did override state's rights with the "partial birth" abortion ban.

The problem with looking toward Gonzales v. Carhart here is that it didn't address the question of whether or not Congress can regulate abortion pursuant to the Commerce Clause because it wasn't even challenged on that point, & that's a problem here: while Kennedy mentioned the commerce power merely as confirmation that the Act obviously constituted a valid invocation of the commerce power (& Ginsburg didn't even touch on it), Thomas' concurrence made clear that both he & Scalia didn't think that Congress had the power which they invoked to even pass the statute, but that they weren't gonna interfere since nobody had raised the issue (not that that's ever stopped Thomas; they didn't interfere only because they didn't mind the final outcome in Gonzales). But yeah, it's pretty weak as far as Commerce Clause jurisprudence is concerned, given that what the case was actually about was whether the lack of an exception for the mother's health served to constitute an unconstitutional 5A violation of personal liberty; if anything, its commerce allusions - Thomas' - foretell failure for an attempted Roe/Casey codification.

[Ferguson97]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Couldn't a Republican trifecta do the opposite, and make abortion illegal at the federal level?

[lfromnj]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Couldn't a Republican trifecta do the opposite, and make abortion illegal at the federal level?

Yeah in the end its better for the pro choice movement that federal legislation on abortion is not allowed.

[Donerail]

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Couldn't a Republican trifecta do the opposite, and make abortion illegal at the federal level?

Historically, no, because of Roe — you can pass legislation codifying the Court's holding but, when it's a constitutional right like the right to abortion, you can't just pass a law eliminating a constitutional right.

Now, of course, all bets are off, and that seems to be the strategy they intend to pursue.

A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate.