Codifying Roe: Here are the constitutional challenges a federal law legalizing abortion may face, experts say

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Politicians across the country have called for a federal law codifying Roe v. Wade after a Supreme Court draft opinion that would overturn the 1973 landmark case, which made abortion a fundamental right nationwide, was leaked to the press.

The passage of such a law has already faced political obstacles, however.

In early May, Democratic members of Congress sought to pass the Women’s Health Protection Act, which aims to protect a person’s right to end a pregnancy, as well as health care providers’ ability to provide services to that end. That legislation did not pass the U.S. Senate. In fact, every Republican and one Democrat, Sen. Joe Manchin of West Virginia, voted against it.

Even if a bill making abortion legal nationwide were to be passed, it would likely face constitutional challenges from anti-abortion activists and organizations, and these petitioners would possibly have the sympathies of the conservative-majority Supreme Court, Northeastern legal experts point out.

Left to right: Martha Davis, university distinguished professor of law at Northeastern, Libby Adler professor of law and women’s, gender, and sexuality studies and Wendy Parmet Matthews University Distinguished Professor of Law and Professor of Public Policy and Urban Affairs Courtesy photos and Photo by Matthew Modoono/Northeastern University

“Opponents to abortion rights now have a relatively friendly judiciary,” says Northeastern University School of Law professor Wendy Parmet, a leading expert on health, disability and public health law, who directs the law school’s Center for Health Policy and Law. “Opponents would likely find ways to challenge a law legalizing abortion, likely on federalism or equal protections grounds.”

Under the federalism argument, anti-abortion advocates would say that codifying Roe does not fall under one of Congress’ enumerated powers mentioned in Article I of the U.S. Constitution or the 14th Amendment, according to Parmet.

“It’s a stretch, but there are arguments. They would cite the 10th Amendment,” Parmet says about potential challengers to a law protecting abortion access. “They would argue that Congress exceeded its scope of power.”

Parmet brings up the 2012 case of “National Federation of Independent Business v. Sebelius,” where the Supreme Court upheld the Affordable Care Act’s individual mandate provision that requires most citizens to get insurance or be penalized. The court held the provision was a valid exercise of Congress’ taxing and spending powers but rejected it as constitutional under the legislative body’s authority to regulate interstate commerce.

Both the Taxing and Spending Clause and Commerce Clause of Article I of the Constitution provide enumerated powers to Congress and would likely be avenues pro-choice lawmakers would pursue to justify the constitutionality of a law legalizing abortion, according to Northeastern professor Libby Adler, who teaches constitutional law, and sexuality, gender and the law.

The interstate commerce argument may have some weight, she notes.

“There are a handful of relevant powers Congress can use. The Commerce Clause is one of these powers. Congress does a lot of regulating under this clause,” Adler says. “There is another law called the Partial-Birth Abortion Ban Act that was passed pursuant to that clause, which suggests that abortion can be reached through the Commerce Clause.”

However, one obstacle that Congress may run into if it were to try to justify a law codifying Roe on the basis of the Commerce Clause would be the argument that although people pay to get abortions, it is not itself an economic act—making it potentially unregulatable under the legislative body’s interstate commerce powers, according to constitutional law professor Martha Davis, the faculty director for the law school’s Program on Human Rights and the Global Economy.

Additionally, she explains, for many years, Congress had “free rein” to regulate under the Commerce Clause. But more recently the Supreme Court has taken a more restrictive view of this enumerated power, so the judiciary would be more likely to strike down a law codifying Roe on this basis.

“The major question there would be is what authority does Congress have to enact such a law?” Davis says. “What does Congress identify as the source of power it’s exercising? Attacks would be based on that question.”

Parmet, Adler and Davis all note that Congress could also attempt to justify such a law using the 14th Amendment of the Constitution. Section 5 of the amendment is the congressional Enforcement Clause, which allows the legislative body to enforce the prohibition on states from depriving people of life, liberty, or property without due process. This clause could potentially be used to back a law protecting pregnant people from anti-abortion laws passed by states.

However, if Justice Samuel Alito, in his final opinion in Dobbs v. Jackson Women’s Health Organization, declares that a fetus has a right to life, such a ruling could potentially trigger due process protections for fetuses, according to Adler. In turn, the court may then give greater weight to a due process challenge to a law legalizing abortion rather than a due process justification for such a law, favoring the potential rights of the fetus over that of the pregnant person carrying the fetus.

“A law protecting abortion could be found unconstitutional on the grounds that the government is denying due process rights to the fetus,” Adler says. “That’s the bigger danger, that the current case that’s pending announces a right to life for the fetus and that once it’s a life, it has protections under the due process clause, because the court has deemed it a person.”

A declaration by the court that the fetus has a right to life could potentially have a negative impact on states that have laws or constitutional amendments protecting people’s rights to terminate pregnancies. Anti-abortion advocates would likely try to argue that such protections violate due process rights of fetuses, according to Adler.

“That’s the biggest fear,” she says in regard to abortion rights. “Then the only way to get around the Supreme Court is to have a new Supreme Court or make a new constitutional amendment, but obviously that’s a very onerous process, and we can’t even get legislation through this congress.”

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