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Op-Ed: It may be impossible to codify Roe. Here’s what Congress should do instead

A close-up of Supreme Court Justice Brett Kavanaugh, showing his face in profile
In his concurring opinion in the decision that struck down Roe vs. Wade, Supreme Court Justice Brett M. Kavanaugh expressed doubts about states preventing women from crossing state borders.
(Jabin Botsford / Pool Photo, Washington Post via AP)
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President Biden has called on Congress to codify Roe vs. Wade, and while that’s long overdue, the president must know that dog won’t hunt. There’s no hope that the present Congress will protect abortion rights now or anytime soon given the likely result of the midterm elections. But let’s imagine that Democrats vote in overwhelming numbers in November, and the new Congress then passes a law protecting access to abortion. Would the Supreme Court uphold it?

In order to adopt a law codifying Roe, Congress must act either under the authority of Section 5 of the 14th Amendment, which authorizes Congress to pass laws enforcing the amendment’s guarantees of liberty, equality and due process, or the commerce clause, which grants Congress broad power to regulate foreign and interstate commerce.

Neither approach is likely to withstand scrutiny by the current Supreme Court.

In 1997, the court held that Congress can’t enact laws under Section 5 of the 14th Amendment for the purpose of protecting a right that the court itself has not recognized. Since this court denies that a woman has a right to control her own reproduction, it’s futile to try to protect that right under Section 5.

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Alternatively, Congress relied on the commerce clause to protect women’s rights in the Violence Against Women Act, a landmark federal law enacted in 1994 to govern investigations and prosecutions of violent crimes against women. But in the Morrison decision in 2000, the Supreme Court struck down a key provision of it. In the court’s narrow view, there was nothing commercial or economic about spousal abuse, and therefore Congress could not regulate it.

Given the composition of this most activist current court, it’s likely the justices would also strike down any federal legislation to protect women’s access to abortion. What makes the Dobbs decision striking down Roe even more frightening is the prospect that certain red states are now considering laws to stop women from leaving their home state to obtain an abortion or to punish them based on the suspicion that they obtained an out-of-state abortion. Such laws parallel the fugitive slave laws that many of the same states once relied on to prevent enslaved people from seeking freedom.

Laws that restrict the free flow of citizens across state lines violate the “dormant commerce clause,” which keeps states from interfering with interstate commerce that is governed by Congress. These laws also limit the fundamental right to travel, which is guaranteed by the 4th Amendment’s privileges and immunities clause and the 14th Amendment’s equal protection clause. In his concurring opinion in the Dobbs case, Supreme Court Justice Brett M. Kavanaugh expressed doubts about states preventing women from crossing state borders — but it would be foolhardy for anyone to think that this Supreme Court would vindicate the rights of women.

A better approach to preserving women’s access to reproductive health services in other states is to enact a federal law that simply provides that women have a right to cross state borders unimpeded and not be subjected to any taxes or penalties. Congress’ authority to adopt laws that protect the free flow of persons across state borders is unquestionably within Congress’ commerce clause powers.

A bill that merely guarantees the right of a woman to cross state borders would be much harder for congressional Republicans to vote against. While no one should underestimate the capacity of Senate Republican leader Mitch McConnell to twist facts and logic, it’s likely that at least some Republican votes can be peeled away, especially among Republicans facing election in swing districts and purple states.

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Last week, the House passed a bill to ensure access to abortion services. The bill might be more palatable to Republican senators if it were amended to simply ensure the right of women to cross state lines, but in any case, Sen. Charles E. Schumer (D-N.Y.) should bring this bill to a vote in the Senate at the earliest possible time. Women’s lives may be lost to any delay.

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The fact that a law guaranteeing the right of women to cross state boundaries is even regarded as necessary in 2022 is a sad commentary on the troubled state of our Constitution and the radicalization of our Supreme Court.

Joel Richard Paul is a professor of law at UC Hastings College of the Law and author of the forthcoming “Indivisible: Daniel Webster and the Birth of American Nationalism.”

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