Congress doesn’t have the power to legislate on abortion

The Supreme Court earlier this year found the US Constitution does not recognize the right to have an abortion. Now Sen. Lindsey Graham (R-SC) wants Congress to act.

His bill, modeled on the Mississippi legislation the court upheld in Dobbs v. Jackson Women’s Health Organization, would ban abortion after the 15th week following conception.

Graham’s bill isn’t especially radical — most European countries actually have stiffer rules, generally cutting off any-reason abortion between weeks 12 and 14.

But the bill is unconstitutional. Dobbs notwithstanding, Congress lacks the constitutional power to regulate abortion. 

That’s not because the Constitution offers special protection for abortion as such. No, there are constitutional limits to how far Congress’ powers go, and those powers don’t go so far as to reach abortion.

It’s often forgotten, but our federal government is not granted the general power to do whatever it wants; it is instead a government of enumerated powers, one allowed to do only things the Constitution specifically authorizes. That document doesn’t let Congress exercise all conceivable legislative powers, only those powers “herein granted” to Congress. 

Article I spells out a long list of things Congress can do, but the list, while long, isn’t all-embracing. Congress has the power to lay and collect taxes, borrow money (no one would accuse it of not doing that), declare war, establish post offices and post roads, etc.

But wide latitude isn’t the same thing as carte blanche. As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined.” A review of the Constitution will demonstrate this to be the case. It will also show that the power to regulate abortion isn’t among them.

The farthest-reaching power of Congress is the power to “regulate commerce . . . among the several states.” Ever since Franklin Roosevelt’s New Deal — or, more accurately, ever since FDR threatened to pack the Supreme Court for striking down his New Deal proposals — the high court has given Congress wide latitude in regulating what has come to be called “interstate commerce.”

As recently as the 1990s, the argument that the commerce clause would authorize an abortion ban as a regulation of commerce “among the several states” would have had some force — since most saw the clause as authorizing Congress to do pretty much anything it chose. Yet even then, many federalists and some Republican officials were criticizing such a reading as far too broad.

U.S. Senator Lindsey Graham
Graham modeled on the Mississippi legislation the court upheld in Dobbs v. Jackson Women’s Health Organization.

But since that time, the Supreme Court has agreed, holding repeatedly that Congress’ power under the commerce clause extends only to, well, the regulation of commerce.

In the 1995 case United States v. Lopez, the court opened its analysis with words that Graham and other Republican lawmakers in Congress would do well to consider: “We start with first principles. The Constitution creates a Federal Government of enumerated powers. . . . As James Madison wrote, ‘[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’”

“This constitutionally mandated division of authority ‘was adopted by the Framers to ensure protection of our fundamental liberties,’” the court noted, referring to Federalist No. 45. “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

So is the regulation of abortion the regulation of “commerce among the several states”? It’s hard to see how.

Abortion isn’t interstate commerce, as it takes place entirely in one state, and regulation of medical procedures is traditionally the domain of the states, not the federal government.

It’s possible to argue otherwise — as I tell my law students, for a sufficient fee, it’s possible to argue almost anything — but such arguments aren’t compelling and are unlikely to convince the current Supreme Court.

Abortion-rights protesters
Abortion-rights protesters continue vocalize their concerns across the country.
AP/Arleigh Rodgers

Graham’s bill is not only unconstitutional — it’s also dumb. The great political appeal of Dobbs is that it allows the states to go their own way. A national abortion law does the opposite. (And of course, it’s all posturing anyway since the bill has no chance of passing a Democratic-controlled House and Senate.)

Put it down to election-year posturing, but I don’t think Graham’s bill will do much for Republicans or for the Constitution. Let the battle over abortion rights move to the states, where under the Constitution it belongs.

Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the blog.

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