Yesterday, we talked about how Dobbs is a federalism solution but how the issue of abortion tourism may cause the states to fight each other. The conflict between the states about issues like this is going to put pressure for the federal government to step in one way or another. We’ve already explained how Biden can’t decide the issue. But what about Congress? Could a Democratic Congress and President pass a law legalizing abortion nationwide? 

Right now, the Senate’s few moderate Republicans and Democrats and the filibuster are the only things standing between Congress and trying to make that happen. That’s a pretty thin line. It appears to be holding for now, though. 

But let’s assume that Congress could somehow get the votes to pass such a law. The Supreme Court made clear in Dobbs, Congress can’t use its power to enforce the Due Process or Equal Protection Clauses to pass that law under the Fourteenth Amendment. That leaves one option for Congress: The Commerce Power. 

The Commerce Clause is what Congress has used to justify nearly every Tenth Amendment violation since the New Deal Era. The Constitution gives Congress the power “to regulate commerce … among the several states.” Under the Articles of Confederation, the states constantly engaged in trade wars with each other. James Madison explained that the primary object of giving Congress this new power was to prevent such trade wars and ensure the smooth flow of commerce between the states. Early Supreme Court decisions clarify that this is only the power to regulate interstate commerce, and I think that’s right.

So is there any way that Congress could use its commerce power to legalize abortion across the country under an originalist analysis of the Constitution? 

Heck no. Not even close. 

But in modern times, the Court has stretched Congress’s commerce power to be broad and sweeping. In Wickard v. Filburn, the Court held that Congress could even ban farmers from growing farm on their own land to feed themselves. The reason? Even though this is not a matter involving interstate commerce, the Court held that it is an intrastate economic activity that in the aggregate could have a substantial effect on interstate commerce. In other words, if farmers across the country can get away with (get ready to clutch your pearls) growing their own food (oh, the humanity!), then that would necessarily affect the price of food sold across state lines. So, Congress can tell you not to do that. 

If James Madison is in heaven and heard about Wickard’s decision, then my guess is he probably begged God to go ahead and pour out His seven bowls of wrath directly on Washington.

Fortunately, the Court has pushed back a bit on Wickard in modern times. In 1995, it held that Congress could not use its commerce power to prevent a child from taking a gun to school, because doing so was simply not an economic activity. And in NFIB v. Sebelius, although Roberts sold out the Country by saving Obamacare through Congress’s tax power, five justices agreed that Congress’s commerce power could not pull people into commerce by forcing them to buy healthcare. 

So, in the case of abortion, I think the fight would come down to whether abortion is “commerce.” The pro-aborts would argue that it is because it is providing a “service” for money. The pro-lifers would argue that human beings can’t be commerce and that doing so would bring us back to the Dred Scott-era of viewing human beings as property. Under the totality of the circumstances, I think this Supreme Court would be more inclined to agree with the pro-life side. It would probably stop short of answering whether unborn children are people; but given that Dobbs’s reasoning was that the states should decide that question, it would probably hold that Congress exceeded its commerce power in going there. 

Thus, the good news is that I don’t think the Supreme Court would allow a national law legalizing abortion to stand. 

Some pro-life advocates want to use Congress’s commerce power to prohibit abortion nationwide. But for the same reason, I don’t think the Court would let that stand either. I think it would simply view the matter of the personhood of the unborn to not be within Congress’s commerce power.

Does that mean that any hopes for a national pro-life solution are gone? No; I think there’s one other way. I’ll talk about that tomorrow.