Wednesday, September 8, 2021
Exploring Possible Bases of Federal Constitutional Power for Congress to Legislate to Protect the Choice of Abortion
Following last week’s US Supreme Court decision in Whole Women's Health v. Jackson allowing a Texas abortion law banning abortion after six weeks to go into effect (pending further litigation), there have been renewed calls for federal legislation to protect a woman’s right to choose abortion. President Biden has called on Congress to act. House Speaker Nancy Pelosi has similarly called for action. And the Women’s Health Protection Act has been pending in the House since 2013, most recently renewed in June 2021. It provides for a right of a healthcare provider to perform an abortion and the right of the patient to receive that treatment.
The Supreme Court too, has periodically suggested this option. For example, Justice Roberts in June Medical v. Russo (2020), wrote that “a weighing of costs and benefits of an abortion regulation” was a job “for state and federal legislatures,” which under the “traditional rule” have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)).
Except that it might not be that easy. The federal government is one of limited power, unlike the states which have broad police power to act for health, safety, morals, and the general welfare. Congress must rely on a source of power specifically articulated in the Constitution.
Here are some options under the Supreme Court’s existing precedent. It is certainly arguable whether some of these decisions are correctly decided, but the arguments below are given within the confines of the existing precedent as controlling.
- Commerce Clause
Congress has cited the Commerce Clause as one source of its power to pass the Women’s Health Protection Act. Congress has power to “regulate commerce . . . among the several states.” U.S. Const., Art. I, §8, cl. 3. Under existing precedent, Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” There are two key questions: is the activity “economic,” (commerce) and is it “interstate” (not local).
The question mark about the possible limitation on Congress’ power to pass a Roe-type law comes from the Court’s decision in the Affordable Healthcare Act case. In National Federation of Independent Businesses v. Sebelius (2011), the majority held that the individual mandate for healthcare was not supported by the Commerce Clause. It held that a tax on the individual for not getting healthcare was not “commerce” because it was not addressing existing commerce, but was rather compelling future commerce or purchase of the insurance. Inactivity, the Court said, was not economic activity.
The Sebelius Court went to great links to distinguish a classic case on the breadth of the Commerce Clause power, Wickard v. Filburn, 317 U.S. 111 (1942) upholding a federal tax on an individual farmer for wheat grown for himself and his livestock. Wickard was different the Court said because even though it was local, the farmer’s decision “allowed him to avoid purchasing wheat in the market,” a decision when “considered in the aggregate along with similar decisions of others, would have had a substantial effect on the interstate market for wheat.”
The Commerce Clause power also requires that a regulate activity be “economic.” This was the problem in the Violence Against Women Act (VAWA) case, United States v. Morrison, 529 U.S. 598 (2000), where a federal law for domestic violence was overturned as not economic activity. “Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Morrison. While money was involved, or potentially involved in fines or payments by the defendant, it was not otherwise an economic activity. The Court also found the activity to be regulated—the violence—to be intrastate, even though the civil protection orders may need interstate enforcement.
The provision of abortion healthcare services seems more easily to fit within the economic, interstate definition of Commerce Clause power. The “Partial-Birth Abortion Act,” a federal abortion regulation upheld in Gonzales v. Carhart (2007), was enacted on the basis of the Commerce Clause. Abortion services is an economic activity. It provides a service in the healthcare market, paid for with individual funds or sometimes health care insurance.
The abortion context also seems more clearly interstate. With bans and restrictions on abortion, patients travel out of state to other providers. They are thus “persons in commerce,” seeking health services, and abortion services are “things in commerce” reaching people beyond the immediate locality. If the abortion service is denied in the locality, then it will have “substantial effect on the interstate market” for the provision of services, as in Wickard. Interestingly, the Supreme Court’s decision in Wickard was foreshadowed by the dissent in the federal appellate case by Judge Florence Allen, the first woman judge to serve on a federal circuit court. It seems appropriate if that historical precedent of the first woman judge would be used to sustain women’s rights almost one hundred years later.
- Section 5 of the Fourteenth Amendment
A second source of power identified by Congress in the Women’s Health Protection Act is Section 5 of the Fourteenth Amendment. This enforcement clause grants Congress power to enforce Section 1 of the Fourteenth Amendment providing due process for liberty interests and equal protection of the laws.
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Section 5 may not be used to redefine a Section 1 right. This is a good basis of congressional power, if Roe/Casey remains good law of recognizing some forma of constitutional right to abortion. But if the Supreme Court overturns Roe/Casey and says that the Due Process Clause’s protection of “liberty” does not included the fundamental right to abortion, then Congress can’t use Section 5 to legislate to the contrary. Instead, Section 5 is limited to providing remedial legislation for constitutional rights defined by the Court.
That’s why the FACE law, the federal Freedom of Access to Clinics Act (1994) protecting patient access to abortion clinics from violent protestors, doesn’t necessarily provide precedent for a new Roe federal law. FACE was authorized as prophylactic remedial legislation to protect “the exercise of free choice” and the “First Amendment religious freedoms” of the protestors. If the Supreme Court overturns Roe, the first part of the FACE laws will no longer be of precedential help. For the same reason, the Section 5 power supporting the passage of the federal Partial Birth Abortion Act, upheld in Gonzales, would fail as it was attached to the Roe right.
However—and it’s a big however--Congress may enact broad “prophylactic legislation” that goes beyond the definition of the constitutional right if necessary to protect that right, and if the remedy is tailored in a congruent and prophylactic way. Twenty years ago I wrote an article defining the contours of prophylactic legislation under Section 5. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 UC Davis 674 (2001). I argued that Section 5 still provides a viable mechanism for passing civil rights legislation despite the Court’s decision in Boerne and Morrison.
Two relevant cases for the abortion context are Morrison and Nevada v. Hibbs. In Morrison, the Court invalidated the Violence Against Women Act providing a federal civil action for domestic violence as not authorized by Section 5 despite its established connection to gender inequality. The key for the Court was the lack of state action required under the Fourteenth Amendment, as VAWA regulated only private conduct. In the abortion context, the state action would be the state law banning or restriction abortion, and thus Morrison can be distinguished. It is closer then to the decision in Nevada v. Hibbs, upholding remedial legislation. In Hibbs, the Court, in a decision by Justice Rehnquist, upheld the Federal Medical Leave Act as appropriate prophylactic legislation under Section 5 because the mandated leave was protective of the constitutional rights of family privacy and parenting, as well as gender equality.
The argument would thus be in the Roe-type law that it is necessary to protecting an independently recognized constitutional right. This right might be the recognized right of procreation (Skinner, LaFleur, Griswold, Eisenstadt), family privacy (Moore, Griswold), parenting (Troxel), or contraception (Griswold, Eisenstadt). These are rights that would not necessarily be struck down if Roe is overturned. There is more consensus among at least a majority of the Justices on these rights, as they have broader implications for other marriage and family contexts and rights than abortion. There might also be an argument to connect to the provider’s right to work or profession.
A Section 5 remedy could also be connected to the right of gender equality, as Hibbs did, with substantial evidence needed to explicate the link between abortion and sex discrimination. Hibbs provides good precedential support here. In fact, this was how the early advocates of women’s procreative rights framed the issues, as one of equal protection not due process. See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice and Legal Change on the Shores of Lake Erie (Finkelman & Alexander, eds. 2012) (LaFleur advocacy by Women’s Law Fund).
- The Necessary and Proper Clause
Congress has also cited the Necessary and Proper Clause for authority to legislate abortion. The Court stated in Sebelius, that “[e]ach of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.” Assuming Roe is struck down, Congress would need to attach this Necessary and Proper argument to another grant of power or constitutional right as in the Section 5 case. The best candidates are procreation and parenting, with the rights going both ways to affirmatively or negatively procreate and parent.
- The Taxing Power
Following Sebelius, Congress could structure the abortion legislation as a tax. In Sebelius, Justice Roberts joined the liberal Justices in upholding the Affordable Healthcare Act as a valid use of the taxing power. The Constitution provides that Congress may “lay and collect Taxes,. . . to . . . provide for the . . . general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1. “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.” Sebelius.
A Roe tax might tax the states which impose bans or regulations on abortion. That tax could then be used for a designated fund to assist women in those states with seeking abortion care in another state. A tax would be preferred over conditioned spending, as some states have shown a willingness to reject federal monies to avoid compliance with a mandate.
- The Ninth Amendment
Striking down Roe should mean only that the Supreme Court holds that the Fourteenth Amendment Due Process Clause and its protection of “liberty” does not include a fundamental right to choose an abortion. That would mean there may be alternative constitutional texts that would support the recognition of the constitutional right like the equal protection clause. Another possible source of recognizing the right is the Ninth Amendment. In the original lower court decision in Roe, the court ground the right in the Ninth Amendment, the general rights remaining with the people although not articulated in the federal Constitution. A majority of the Court in Griswold, first recognizing marital privacy, individual choice, and contraception as rights, also ground these in the Ninth Amendment. See Allison Kruschke, Finding a New Home for the Abortion Right Under the Ninth Amendment, 12 ConLawNOW 128 (2020). The Ninth Amendment paired with the Necessary and Proper Clause would give Congress power to legislate a Roe-type right.
 Although, Congress can and has redefined the Court’s analysis used to define a constitutional right, and so perhaps there is room here to argue to use a different analysis to define the right even with Boerne. See Dep’t of Oregon v. Smith (Religious Freedom and Restoration Act changed Court’s conclusion as to violation of Free Exercise Clause); Mobile v. Borden, (Voting Rights Act changed Court’s analysis and conclusion on right to vote). See also Gonzales v. Carhart (upholding federal Partial Birth Abortion Act which redefined Roe right).