Are Abortion Rights on the Ballot?

Abortion Remains a Federal Issue Despite What Trump, Republicans, and Some Pundits Claim - How Congress Could Pass a Federal Law Legalizing Abortion

At both Presidential debates this year, Donald Trump did something highly unusual for Donald Trump: (1) he took credit for something he actually accomplished, and (2) admitted fault for something horrendous he had done.

Both are the same thing, of course - overturning Roe v. Wade and taking away a woman’s fundamental constitutional right to choose.

Trump and the Republicans can rightfully take credit.¹ To review.

Breaking longstanding Senate rules allowing the confirmation of Supreme Court Justices more than 6 months from a Presidential election, when Justice Antonin Scalia died in 2016, Senate Republicans refused to give the moderate and well-respected Merrick Garland, who President Obama nominated, a hearing and held Justice Scalia’s seat open for over 14 months so that Trump could appoint his successor.

In 2020, when Justice Ruth Bader Ginsburg died less than 2 months before the election, Senate Republicans broke their own 2016 rule (not to mention the previous longstanding 6 month rule) to allow Donald Trump to fill the vacancy, appointing Amy Comey Barrett. The winner of the 2020 Presidential election, Joe Biden, should have filled Ruth Bader Ginsburg’s vacancy.

And with three Supreme Court appointments during his term, Trump appointed three ideologically motivated Justices to the United States Supreme Court for the very purpose of overturning Roe v. Wade. When the opportunity first arose, these Justices enforced their own personal policy preferences instead of adhering to the Constitution and took away the right to abortion.

Given the unpopularity of the decision, Trump has tried to have it both ways. On the one hand, he takes credit for being the Republican President who finally overturned Roe v. Wade. On the other hand, he publicly suggests that he’s really pro-choice and argues it is a policy improvement that every state can have a different abortion law.

During the Presidential debate with Kamala Harris, Trump tried to suggest that the overturning of Roe v. Wade had a limited effect, pointing to state referendums where voters had favored abortion rights. It’s become a Republican talking point to dissuade angry pro-choice voters from voting for Kamala Harris and Democratic candidates (even as Republicans oppose these same state referendums legalizing abortion).

Battles for abortion rights are taking place in the states.

In 2022 and 2023, over fierce Republican opposition, constitutional amendments to add language protecting a woman’s right to choose in Michigan and Ohio were successful at the ballot box.² Similar state constitutional ballot initiatives in California and Vermont also passed overwhelmingly.³

Additionally in 2022, Republican efforts to overturn state supreme court decisions in Kansas, Montana, and Kentucky upholding the right to abortion under state constitutions were also unsuccessful.⁴

This November, state constitutional ballot measures to protect pre-existing abortion rights or establish abortion rights in state constitutions will be on the ballot in Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, New York, Nevada, and South Dakota.⁵ Conversely, a measure to ban abortion after the first trimester in the Nebraska Constitution will appear on the ballot.⁶

The ballot initiative talking point may be a successful tactic for Republicans. In California, Republicans won 8 out of 12 contested Congressional races in 2022 despite a constitutional amendment explicitly guaranteeing abortion rights passing by more than a 2-1 margin statewide, including by double digit margins in five Congressional seats that Republican candidates won.⁷

While I hope all these ballot initiatives are successful, there are several reasons why the “it’s for the states to decide” line from Trump and the Republicans is wholly inadequate as a response to the loss of Roe v. Wade.

First, a woman’s right to choose should not be dependent on where in the United States she happens to live or happens to be when in need of an abortion. Whether a woman can obtain an abortion involves her fundamental autonomy over her own body.⁸ In many cases, abortion is a life or death situation where being unable to obtain an abortion could lead to death, lifelong injury, or permanent sterility.⁹

Women have already died or been permanently sterilized due to the unavailability of safe and legal abortion since Roe was overturned.

Second, only about half of our states have a ballot initiative system where citizens can over-ride their state legislatures and change their state constitutions to ensure protection of this fundamental right.¹⁰ Even if voters over-rule their state governments in every state with a ballot measure system, almost half the country lacks this remedy.

Third, if re-elected, President Trump might well direct the FDA to remove Mifepristone, the abortion drug that is now the most common form of abortion, from the market. Although a lawsuit by anti-abortion activists to force the FDA to do so failed this year, it is something that the FDA could do on its own. This would have the effect of preventing most abortions even in states where abortion was legal.

Fourth, provided it has constitutional authority to do so, Congress could pass a federal law banning all abortion or severely restricting abortion rights. In that instance, all the contrary state constitutional provisions protecting a woman’s right to choose would be overridden by federal law.¹¹ The fact that these abortion provisions would be state constitutional provisions would make no difference.¹²

While he claims to have no interest in doing so, Trump’s track record demonstrates that he’ll say whatever is most convenient at the moment, regardless of its accuracy. Taking Trump’s word for anything is almost willful ignorance at this point.

Also, as writer and pro-choice activist

Jessica Valenti

recently wrote in EXCLUSIVE: Here's the Anti-Abortion Group Pulling Trump’s Strings, there’s plenty of evidence that “Trump has been quietly taking marching orders from the country’s most powerful and radical anti-abortion activists.” It’s not surprising.

That said, it’d be easy to question whether abortion is no longer a federal issue even though it should be. The Court in Dobbs claimed the issue was returned to the states. Pundits who support Trump continue to implore voters that abortion isn’t something that matters at the federal level.

The answer is no. It’s still a federal issue.

In one of her strongest responses in the Presidential debate, Kamala Harris did not allow Trump to get away with his abortion gaslighting. Moreover, she promised to sign a law restoring nationwide abortion rights if elected President. This past week, she even suggested, to some criticism, that the Senate should get rid of the filibuster in order to pass a law protecting abortion.

Thus, abortion is on the ballot in this election and the outcome of the election could likely determine whether American women have their fundamental rights restored.

Kamala Harris’s promise to sign a law restoring abortion rights raises a different issue. Putting aside whether there are enough votes in the House and the Senate to pass a federal law and issues regarding the filibuster, there is a question as to whether Congress has the authority to pass a law restoring abortion rights.

What does mean that Congress could pass a law banning abortion “provided it has the constitutional authority to do so”?

Can’t Congress simply do whatever it wants? That is the impression one might get listening to actual members of Congress, media commentators, and high school civics teachers. But it’s actually not accurate.

Under the United States Constitution, Congress can only pass laws when Congress is constitutionally authorized to pass such laws.¹³ When the Constitution does not give authority for Congress to govern in an area of law or public policy, Congress lacks authority to do so.¹⁴

This is different from state governments which have the constitutional police power to enact laws unless otherwise restricted by the United States Constitution or their own state Constitution.¹⁵

Here’s how to best understand it:

• State legislatures can pass whatever they want unless the United States Constitution or their state constitution says the state legislature can’t.

• Congress can’t pass anything unless the Constitution says Congress can.

Or for visual learners, a cars and traffic light analogy:

A State Legislature’s power:

Congress’s power:

Thus, if a Republican controlled Congress passes a law banning all abortion in the United States that President Trump signs into law (as he would certainly do) or if a Democratic controlled Congress passes a law restoring abortion rights in all 50 states that President Harris signs into law, it will have to be authorized by the Constitution.

This isn’t an unforeseen flaw in the system but was purposefully designed to protect the individual liberty of Americans.¹⁶

What happens if a court finds that Congress has passed a law outside of its constitutional authority?

It will be struck down as unconstitutional.¹⁷

This has occurred numerous times. In the 1990’s, the Supreme Court famously struck down parts of several federal laws - the Gun-Free School Zones Act of 1990, the Violence Against Women Act, and the Religious Freedom Restoration Act of 1993 - as being outside the scope of Congress’s authority to enact.¹⁸

Many Republicans, while simultaneously supporting a federal abortion ban, would point out that the Constitution does not expressly provide for authority to pass laws protecting abortion and argue that Congress cannot pass a law protecting abortion rights.

Exact language though is not actually required. After all, the Constitution only gives authority to Congress to provide for an army and a navy but gives no authority to provide for an Air Force, a Marine Corps, a Coast Guard, or even a Space Force.¹⁹ However, not even Clarence Thomas has questioned the constitutionality of the United States Air Force or the United States Marine Corps.

However, non-express constitutional authority would still be needed for a law protecting abortion rights.²⁰ What authority might provide Congress the ability to pass a federal abortion rights law?

One of the most commonly used sources Constitutional authority to pass laws by Congress is what is known as the Commerce Clause.²¹ The Commerce Clause gives fairly broad authority to Congress to pass laws in a number of public policy areas.²²

The Supreme Court has held that under the Commerce Clause, Congress has the power to regulate, (1) “the channels of interstate commerce,” (2) “persons or things in interstate commerce,” and (3) “those activities that substantially affect interstate commerce.”²³

Since the Great Depression, the Court has been particularly deferential to what Congress decides is within interstate commerce.²⁴ There’s a good reason. Courts are reluctant to interfere in policy choices made by the political branches.²⁵ However, this does not mean that the Commerce Clause is a dead doctrine or that the Court will greenlight whatever Congress wants to do.²⁶

While Congress has authority to pass laws that broadly affect interstate commerce though it does not create a general police power for Congress to pass laws on any subject it pleases.²⁷ The individual health insurance mandate in the Affordable Care Act provides an interesting recent example of the limitations of the Commerce Clause authority.

Although the Court upheld the individual mandate to buy health insurance under the Constitution’s taxation authority, the plurality opinion held that the individual mandate to purchase health insurance was not authorized by the Commerce Clause.²⁸ The dissenting opinion (and thus a full 7-2 majority of the Supreme Court) fully agreed.²⁹ Only two Justices on the Court disagreed.³⁰

Does the Commerce Clause authorize Congress to pass a law requiring states to allow legal abortion? For that matter, does the Commerce Clause allow Congress to pass a ban on abortion in the states?

The issue is untested.

In 2007, the Supreme Court upheld the federal ban on partial-birth abortion.³¹ But there, the challenge was based solely on traditional privacy rights under the Fifth Amendment.³² While some thought it should have been challenged on Commerce Clause grounds, it wasn’t and the Court did not decide that issue.³³

Laws criminalizing actions outside interstate commerce have been upheld. The Supreme Court has upheld federal laws criminalizing marijuana and over-riding contrary state laws allowing medicinal marijuana against a Commerce Clause challenge.³⁴ However, the considerations for marijuana within interstate commerce are different then abortion within interstate commerce.³⁵

If the Commerce Clause does not allow Congress to pass a law restoring abortion protections, are there other potential of sources of Constitutional authority that would allow Congress to do so?

Yes.

1. The Enforcement Clause of the Fourteenth Amendment.³⁶ Although the Court has taken away the constitutional right of women to choose, Congress does not have to rely exclusively on Court rulings to legislate under this clause.³⁷ Many argue that abortion bans violate Equal Protection as they discriminate on the basis of sex.³⁸ Sex discrimination is presumptively unconstitutional.³⁹ Congress could argue that a law restoring abortion rights is critical for the purpose of combatting unconstitutional sex discrimination.⁴⁰

2. The Enforcement Clause of the Thirteenth Amendment.⁴¹ The Thirteenth Amendment prohibits slavery.⁴² Some argue that this constitutional provision protects the right to an abortion since a woman who is forced to give birth against her will is effectively a slave.⁴³ Congress could use use its Thirteenth Amendment enforcement power to enact legislation to allow abortion on the grounds that it is protecting against slavery.⁴⁴

3. The Spending Clause.⁴⁵ Instead of passing laws to directly over-ride contrary state laws, Congress has the power to condition its spending to the states only if the states will agree to adopt certain laws or policies.⁴⁶ Congress has done this on numerous policies including the minimum drinking age.⁴⁷ Thus, even if it cannot pass a federal law requiring legal abortion, Congress would condition spending to the states on those states allowing some minimum abortion rights.⁴⁸ While some states might hold out, this would serve as a way of legalization in numerous states.

The aforementioned constitutional provisions are not guaranteed to provide authority for a law guaranteeing abortion rights.

For example, in 1990, the Supreme Court ruled against the First Amendment Free Exercise Clause claims of Native American church members who were denied unemployment benefits because they had been fired for having smoked peyote.⁴⁹ Disliking the decision, Congress passed the Religious Freedom Restoration Act in 1993, which purported to overturn the previous Court decision.⁵⁰

The Court held that the Religious Freedom Restoration Act was unconstitutional and could not be supported as an exercise of Congress’s Fourteenth Amendment Enforcement Clause power.⁵¹

The United States Supreme Court had always cautioned that there were limits on how much coercive power that Congress could use against the states by use of the Spending Clause power.⁵² However, until 2012, the Court had never struck down a federal law on that basis.⁵³

In 2012, the Court finally enforced this limitation. When evaluating Congress’s Medicaid expansion requirement in the Affordable Care Act, which penalized states for not accepting the expansion, the Court held Congress had exceeded its Spending Clause authority for being too coercive against the states.⁵⁴

That said, passing a federal law protecting abortion rights will not be a pointless endeavor. There are several sources of constitutional authority for Congress to pass a law protecting abortion rights. Like the Affordable Care Act, if one source of constitutional authority is insufficient, another source of constitutional authority may suffice.⁵⁵

Ultimately, whatever a court might hypothetically decide in the future, abortion very much remains a federal issue. If you care about the abortion issue, your vote for President matters because it very likely will affect the future of abortion.⁵⁶

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. https://ballotpedia.org/Michigan_Proposal_3,_Right_to_Reproductive_Freedom_Initiative_(2022); https://ballotpedia.org/Ohio_Issue_1,_Right_to_Make_Reproductive_Decisions_Including_Abortion_Initiative_(2023)

3. https://ballotpedia.org/California_Proposition_1,_Right_to_Reproductive_Freedom_Amendment_(2022); https://ballotpedia.org/Vermont_Proposal_5,_Right_to_Personal_Reproductive_Autonomy_Amendment_(2022)

4. https://ballotpedia.org/Kansas_No_State_Constitutional_Right_to_Abortion_and_Legislative_Power_to_Regulate_Abortion_Amendment_(August_2022); https://ballotpedia.org/Kentucky_Constitutional_Amendment_2,_No_Right_to_Abortion_in_Constitution_Amendment_(2022); https://ballotpedia.org/Montana_LR-131,_Medical_Care_Requirements_for_Born-Alive_Infants_Measure_(2022)

5. https://ballotpedia.org/2023_and_2024_abortion-related_ballot_measures

6. (https://ballotpedia.org/Nebraska_Prohibit_Abortions_After_the_First_Trimester_Amendment_(2024)

7.

8. See American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 369-370 (Cal. 1997)(Kennard, J., concurring in the judgment)(“Every pregnant woman, regardless of age, is vitally affected by the decision to continue or terminate her pregnancy and stands to gain or lose depending upon whether that decision is made without interference by the state or any other third party and without public disclosure. Thus, the privacy interest in procreative choice does not vary based on the age or maturity of the pregnant woman whose choice is at issue.”).