The Commerce Clause and Restrictions on Abortion

Reacting to how restrictive abortion laws block low-income women's access to reproductive health care and force them across state borders, Kaiya Lyons's article in the Thurgood Marshall School of Law Journal on Gender, Race, and Justice develops the theory that Congress's power to regulate commerce vests it with the authority to invalidate such laws.  The abstract follows. 

The Supreme Court has consistently held that the right of a woman to choose to have an abortion before viability and without undue burden should be preserved. However, the ability of a woman to exercise that right today is as intimately connected to her economic privilege and geographic location as it was in the days preceding the Court's landmark ruling in Roe v. Wade. As a result of the great deference assigned to state legislatures by Roe and its progeny, increasingly restrictive abortion laws have been enacted across the country that obstruct low income women's access to reproductive health care.

This article seeks to outline how the "seismic shift" in reproductive rights law since the 2010 midterm election forced women to travel into other states to receive abortions, and thus created the very interstate market that would allow Congress to invalidate such laws under the Commerce Clause. While unlikely in the current political climate, such a legislative effort could effectively circumvent the ability of the Supreme Court to further narrow its abortion jurisprudence. This article argues that federal action is necessary to protect the rights of low income and economically vulnerable women for whom abortion is a vital piece of comprehensive reproductive health care.