Would federal legislation to restore Roe survive the Supreme Court?

[President Johnson]

Biden and the Democrats promise to restore Roe by codification into federal law if reelected with a Democratic trifecta. Now besides the challenging senate map, if Biden got reelected with a Democratic congress, would such a federal law be overturned by the courts? While I think it wouldn't pass without the filibuster nuked, I'm skeptical such a bill would sustain court challenges unless composition of the Supreme Court changes. Maybe Roberts would join the liberals, but that's enough. Or are Democrats actually banking on Biden or any subsequent Democratic president having the opportunity to replace a conservative on the bench and therefore  alter the power balance of the court?

What are your thoughts on this?

[brucejoel99]

Hopefully:

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Worth noting, it can all be true that:

1.) Wickard & Gonzales are abominations, but;

2.) Even under the Court's narrower interstate commerce interpretations of the past 3 decades, the economic provision of abortion services easily qualifies under Rehnquist's Lopez reasoning as Congressionally-regulatable intrastate commerce that legitimately has a substantial affect on interstate commerce, which is important because;

3.) Dobbs explicitly didn't leave the legislative power to regulate abortion to the states alone but merely precluded recognition of a federal constitutional right to it, thus returning consideration of the matter to the people's elected representatives in general; that is, leaving the power to regulate abortion to the states only in the absence of preemption by any constitutional federal regulation legitimately within a Congressional purview, like interstate commerce (as was implied by the partial-birth abortion ban case taking for granted the legitimacy of the congressional power over the provision of the medical procedure due to its connection to interstate commerce).

Unconstitutional, though it's not like that's anything new.

How would it be unconstitutional? The whole thrust of Dobbs is that the Constitution is (supposedly) silent on the issue of abortion.

Dobbs left the issue of abortion to the states. That is the primary premise of it.

Kavanaugh's whole concurrence was, notably, about leaving it to the people's elected representatives. Whether pro-life conservatives or libertarians such as John Dule like it or not, there are 5 votes on the current SCOTUS to uphold the WHPA just on the basis of the Lopez case's narrow interstate commerce grounds, the double-edged sword of that being that a national abortion ban is legally viable on the same grounds.

[Skill and Chance]

Hopefully:

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Worth noting, it can all be true that:

1.) Wickard & Gonzales are abominations, but;

2.) Even under the Court's narrower interstate commerce interpretations of the past 3 decades, the economic provision of abortion services easily qualifies under Rehnquist's Lopez reasoning as Congressionally-regulatable intrastate commerce that legitimately has a substantial affect on interstate commerce, which is important because;

3.) Dobbs explicitly didn't leave the legislative power to regulate abortion to the states alone but merely precluded recognition of a federal constitutional right to it, thus returning consideration of the matter to the people's elected representatives in general; that is, leaving the power to regulate abortion to the states only in the absence of preemption by any constitutional federal regulation legitimately within a Congressional purview, like interstate commerce (as was implied by the partial-birth abortion ban case taking for granted the legitimacy of the congressional power over the provision of the medical procedure due to its connection to interstate commerce).

Unconstitutional, though it's not like that's anything new.

How would it be unconstitutional? The whole thrust of Dobbs is that the Constitution is (supposedly) silent on the issue of abortion.

Dobbs left the issue of abortion to the states. That is the primary premise of it.

Kavanaugh's whole concurrence was, notably, about leaving it to the people's elected representatives. Whether pro-life conservatives or libertarians such as John Dule like it or not, there are 5 votes on the current SCOTUS to uphold the WHPA just on the basis of the Lopez case's narrow interstate commerce grounds, the double-edged sword of that being that a national abortion ban is legally viable on the same grounds.

Looking at the California pork case, for example, it seems reasonably clear to me that Roberts and Kavanaugh would uphold federal authority over the states on abortion.  Kavanaugh arguably already confirmed this in his Dobbs concurrence when he mentioned the states and congress.  So that's a reasonably clear 5 votes to uphold a federal law legalizing some minimum amount of abortion (unless e.g. Trump gets to replace Sotomayor).

The more interesting question would be if it was a federal abortion ban.  It seems reasonably likely that Thomas and Gorsuch believe (intrastate) abortion services do not count as interstate commerce and would love an opportunity to narrow the mid 20th century commerce clause rulings.  Barrett might also agree with this given how strongly she took California's side in the recent pork producers case.  So, would the 3 liberals be willing to swallow that pill and join a decision striking down a federal abortion ban/limit by ruling that it isn't interstate commerce and there's no federal authority over abortion (at least abortions that don't involve crossing state lines or using the postal service) going forward? 

[Libertas Vel Mors]

Hopefully:

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Worth noting, it can all be true that:

1.) Wickard & Gonzales are abominations, but;

2.) Even under the Court's narrower interstate commerce interpretations of the past 3 decades, the economic provision of abortion services easily qualifies under Rehnquist's Lopez reasoning as Congressionally-regulatable intrastate commerce that legitimately has a substantial affect on interstate commerce, which is important because;

3.) Dobbs explicitly didn't leave the legislative power to regulate abortion to the states alone but merely precluded recognition of a federal constitutional right to it, thus returning consideration of the matter to the people's elected representatives in general; that is, leaving the power to regulate abortion to the states only in the absence of preemption by any constitutional federal regulation legitimately within a Congressional purview, like interstate commerce (as was implied by the partial-birth abortion ban case taking for granted the legitimacy of the congressional power over the provision of the medical procedure due to its connection to interstate commerce).

Unconstitutional, though it's not like that's anything new.

How would it be unconstitutional? The whole thrust of Dobbs is that the Constitution is (supposedly) silent on the issue of abortion.

Dobbs left the issue of abortion to the states. That is the primary premise of it.

Kavanaugh's whole concurrence was, notably, about leaving it to the people's elected representatives. Whether pro-life conservatives or libertarians such as John Dule like it or not, there are 5 votes on the current SCOTUS to uphold the WHPA just on the basis of the Lopez case's narrow interstate commerce grounds, the double-edged sword of that being that a national abortion ban is legally viable on the same grounds.

Looking at the California pork case, for example, it seems reasonably clear to me that Roberts and Kavanaugh would uphold federal authority over the states on abortion.  Kavanaugh arguably already confirmed this in his Dobbs concurrence when he mentioned the states and congress.  So that's a reasonably clear 5 votes to uphold a federal law legalizing some minimum amount of abortion (unless e.g. Trump gets to replace Sotomayor).

The more interesting question would be if it was a federal abortion ban.  It seems reasonably likely that Thomas and Gorsuch believe (intrastate) abortion services do not count as interstate commerce and would love an opportunity to narrow the mid 20th century commerce clause rulings.  Barrett might also agree with this given how strongly she took California's side in the recent pork producers case.  So, would the 3 liberals be willing to swallow that pill and join a decision striking down a federal abortion ban/limit by ruling that it isn't interstate commerce and there's no federal authority over abortion (at least abortions that don't involve crossing state lines or using the postal service) going forward? 

Would love to see the media/Congressional reaction to a Thomas opinion striking down an abortion ban.

[Skill and Chance]

Hopefully:

I've seen some advocation for this, but how is it possible? How can federal legislation prohibit states from banning abortion? Wouldn't that violate the 10th Amendment?

Congress has the power to regulate interstate commerce (United States v. Lopez). Any federal legislation codifying Roe would regulate the basic economic activity of providing reproductive healthcare services in a marketplace. Congress, not the states, has the power to regulate these services; federal law preempts state law on the subject (Gibbons v. Ogden).

Worth noting, it can all be true that:

1.) Wickard & Gonzales are abominations, but;

2.) Even under the Court's narrower interstate commerce interpretations of the past 3 decades, the economic provision of abortion services easily qualifies under Rehnquist's Lopez reasoning as Congressionally-regulatable intrastate commerce that legitimately has a substantial affect on interstate commerce, which is important because;

3.) Dobbs explicitly didn't leave the legislative power to regulate abortion to the states alone but merely precluded recognition of a federal constitutional right to it, thus returning consideration of the matter to the people's elected representatives in general; that is, leaving the power to regulate abortion to the states only in the absence of preemption by any constitutional federal regulation legitimately within a Congressional purview, like interstate commerce (as was implied by the partial-birth abortion ban case taking for granted the legitimacy of the congressional power over the provision of the medical procedure due to its connection to interstate commerce).

Unconstitutional, though it's not like that's anything new.

How would it be unconstitutional? The whole thrust of Dobbs is that the Constitution is (supposedly) silent on the issue of abortion.

Dobbs left the issue of abortion to the states. That is the primary premise of it.

Kavanaugh's whole concurrence was, notably, about leaving it to the people's elected representatives. Whether pro-life conservatives or libertarians such as John Dule like it or not, there are 5 votes on the current SCOTUS to uphold the WHPA just on the basis of the Lopez case's narrow interstate commerce grounds, the double-edged sword of that being that a national abortion ban is legally viable on the same grounds.

Looking at the California pork case, for example, it seems reasonably clear to me that Roberts and Kavanaugh would uphold federal authority over the states on abortion.  Kavanaugh arguably already confirmed this in his Dobbs concurrence when he mentioned the states and congress.  So that's a reasonably clear 5 votes to uphold a federal law legalizing some minimum amount of abortion (unless e.g. Trump gets to replace Sotomayor).

The more interesting question would be if it was a federal abortion ban.  It seems reasonably likely that Thomas and Gorsuch believe (intrastate) abortion services do not count as interstate commerce and would love an opportunity to narrow the mid 20th century commerce clause rulings.  Barrett might also agree with this given how strongly she took California's side in the recent pork producers case.  So, would the 3 liberals be willing to swallow that pill and join a decision striking down a federal abortion ban/limit by ruling that it isn't interstate commerce and there's no federal authority over abortion (at least abortions that don't involve crossing state lines or using the postal service) going forward? 

Would love to see the media/Congressional reaction to a Thomas opinion striking down an abortion ban.

Thomas and especially Gorsuch have provided the 5th vote for on-paper left wing decisions several times on idiosyncratic issues, so it wouldn't entirely shock me (most notably Indian law, where Gorsuch appears to be "left" of Sotomayor because he takes such an originalist view of the treaties).

[Skill and Chance]

Now that I think about it, Thomas (and Alito) would likely rule that a federal abortion ban/restriction fails the commerce clause test but can be upheld because it vindicates the unborn child's 14th Amendment right not to be deprived of life without due process of law.  This would basically be "Checkmate, libs, only federal abortion laws that are more pro-life than state law are constitutional!"  However, I doubt more than 2 justices would go along with this.

[SnowLabrador]

No. They already ruled that abortion wasn't a right, and they're hacks. Anyone who says yes is kidding themselves.