Post Dobbs, Congressional Bills To Make Roe Permanent Are Unconstitutional

In light of the decision of the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and Planned Parenthood v. Casey, there has been a renewed push for federal legislation that would codify an abortion “right”. For instance, the Senate has previously declined to pass the Women’s Health Protection Act, H.R. 3755 (“WHPA”), which the House of Representatives passed on September 21, 2021, by a slim 218-211 vote. The Senate could also consider the Reproductive Choice Act, S. 3713 (“RCA”), introduced as an amendment to the WHPA on February 28, 2022, by Senators Collins and Murkowski.

We originally alerted you about the danger these bills pose shortly after the leak of the draft Dobbs opinion. Now that the pro-abortion Left’s worst nightmare has become a reality and Roe and Casey are gone, the bills are back. And now we have a renewed push to blow up the filibuster, with President Biden even calling for an “abortion exception” to the filibuster, to be able to impose on the entire nation a one-size-fits-all abortion regime. But as our legal analysis has found, these proposals are unconstitutional.

The first bill, breathtaking in scope, would by design enshrine in federal law what President Biden calls the “right to abort a child.” The WHPA would sweep away every federal, state, and local law that in any way attempts to limit, interfere with, impede, hinder, or even try to regulate abortion on demand and at any stage of pregnancy, up to the moment of birth.

Moreover, the WHPA implicitly abolishes the whole complex of conscience-protecting laws and regulations that Congress and the states have created over the past 50 years to balance the judicially mandated availability of the procedure under Roe with the fact that, for many Americans, participating in that procedure constitutes a violation of their most deeply held religious and ethical values. The WHPA even goes so far as to subordinate to the “right to abort a child” the constitutional right to Free Exercise of Religion by forbidding the application in any abortion-related case of the Religious Freedom Restoration Act of 1993 (“RFRA”). The RCA, a response by pro-choice Senators Collins and Murkowski to the radicality of the WHPA, would at least leave in place conscience protections, including RFRA.

Here at the ACLJ, although our analysis and research is ongoing, we have already identified a number of serious constitutional defects underpinning both bills in light of the overruling of Roe and Casey by Dobbs. We have identified specific legal claims and parties that would have the best chance of succeeding in court challenges we are prepared to bring should either bill be passed by Congress and signed by the President.

While the WHPA purports to be an exercise of congressional authority granted by the Commerce Clause, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause, none of these justifications would be valid in light of the Dobbs Court’s overruling of Roe and Casey. Moreover, there are serious Tenth Amendment issues that arise under Dobbs. The WHPA would also likely sweep away all federal and state laws protecting the conscience rights of health care providers, raising additional grounds for a legal challenge.

• Tenth Amendment. It is a fundamental principle of our political system that the federal government is a government of enumerated, limited powers. This means, among other things, that the federal government may act only where the Constitution authorizes it to do so. Printz v. United States, 521 U.S. 898, 936-37 (Thomas, J. concurring). Since Dobbs has now reversed Roe and Casey and held that there is no constitutional right to abortion under the Fourteenth Amendment (or any other constitutional provision), the Tenth Amendment is clear as to which authority within our “system of dual sovereignty” belongs the responsibility of legislating abortion: the states. Since both the WHPA and RCA are attempts to usurp the states’ authority to regulate abortion, they violate the Tenth Amendment.
  
  
• The Necessary and Proper Clause does not authorize Congress to enact the WHPA or the RCA. That Clause merely permits “exercises of authority derivative of, and in service to, a granted power,” and it does not authorize “a substantial expansion of federal authority.” NFIB v. Sebelius, 567 U.S. 519, 560 (2012). There is no constitutional provision that authorizes Congress to enact these bills, and their enactment would improperly expand federal authority.
  
  
• Commerce Clause. The bills cannot be justified under Congress’s Commerce Clause powers. The bills do not regulate the instrumentalities or channels of interstate commerce, and they are not tied to interstate commercial activity. Rather, the bills would create a statutory “right” of medical professionals to kill unborn children, even when doing so is a felony under state laws. The regulation of crimes against the person (murder, abortion, assault, etc.) falls squarely within the states’ police power. Congress lacks the authority to position itself as the nation’s sole arbiter of whether, and under what circumstances, abortion is lawful or unlawful.
  
  
• Section 5 of the Fourteenth Amendment. The overruling of Roe and Casey based on a finding that there is no constitutional right to abortion means that Congress cannot use its Fourteenth Amendment Section 5 powers to “readopt” a right to abortion. Section 5 authorizes Congress to enact legislation “to enforce” the Fourteenth Amendment. Since there is no right to abortion in that amendment (as Dobbs expressly holds), then there is no right for Congress to enforce.
  
  
• In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court made clear that, ultimately, the Court, not Congress, gets to decide the substance of the Fourteenth Amendment’s restrictions on the states. “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” Id. at 527. Since Dobbs declares that there is no “right to abortion” under the Fourteenth Amendment, Congress would have no Section 5 power to enforce that nonexistent right.
  
  
• Both bills are also fundamentally inconsistent with the Equal Protection Clause and, thus, unconstitutional. The WHPA and RCA force states to deny the equal protection of the law to an entire category of human beings, namely, those alive but yet unborn.
  
  
• The WHPA, both by expressly forbidding the use of RFRA by those aggrieved by the Act’s imposition of abortion as a “super right,” as well as its express preemption of any federal and state laws that might conceivably be viewed as hindering access to abortion, would effectively abolish the right of health care workers to conscientiously object to participating in abortions. This right, deriving to some extent from the First Amendment’s Free Exercise Clause but also, arguably, a substantive due process right, has always been recognized to a greater or lesser degree since Roe was decided in 1973. In fact, Roe itself, and its companion case, Doe v. Bolton, recognized a right of health care providers to not participate in abortions for reasons of conscience. The Roe majority even quoted with approval resolutions of the American Medical Association confirming that “no party to the [abortion] should be required to violate personally held moral principles.” 410 U.S. 113, 143 n.38 (1973). The WHPA, while claiming to do nothing more than codify Roe (and Casey), would actually ignore this crucial limitation on the abortion right.

In the coming days, we intend to hone our arguments and identify potential parties who would be best positioned, legally, to bring court challenges to the WHPA and/or the RCA should either of them become law. It may be that state attorneys general would be in the best position to mount facial challenges to either law, as both bills amount to unconstitutional encroachments on the principles of federalism that undergird the U.S. Constitution. Some individual health care providers and religious hospitals and health care facilities would also likely be able to mount as-applied challenges based on the circumstances as we expect them to play out, especially under the WHPA.

Regardless of what legislation, if any, is ultimately enacted by Congress, the ACLJ will be prepared to help defend innocent human life in the coming days and months.