When Alabama last week passed an outright abortion ban, with no exceptions for rape or incest, it drove home a frightening reality: The Republican Party, if given enough power, will fully rob women of their reproductive rights—indeed of their agency as human beings. The state also potentially upset a quieter conservative legal strategy across America to chip away at legalized abortion, rolling it back incrementally rather than wholesale. This is why televangelist Pat Robertson declared on his talk show that “Alabama has gone too far”—not because he disagrees with the law, but because the case was explicitly designed to challenge Roe v. Wade. “My humble view is that this is not the case that we want to bring to the Supreme Court,” he said, “because I think this will lose.”
The Alabama law almost certainly will be blocked by the courts before it can take effect in six months, but it seems unlikely to be the next abortion case to reach the Supreme Court, as there are a number of cases already winding their way through circuit courts of appeals. It’s possible that the justices would decide not to hear the eventual challenge to the Alabama law. And even if they do, Justice Brett Kavanaugh could follow in the footsteps of his predecessor, Anthony Kennedy, by voting to keep Roe intact in some form; or Chief Justice John Roberts could pursue a more moderate approach to preserve the court’s institutional reputation.
But a growing number of Democratic candidates don’t want to take any chances: They want to make Roe v. Wade the law of the land not because the Supreme Court says so, but because Congress does.
Last week, Kirsten Gillibrand promised that, if she’s president, “I will codify Roe v. Wade into law to make it clear beyond the shadow of a doubt that women in this country have a guaranteed right to abortion.” John Hickenlooper tweeted that “our next president must act to enshrine Roe v. Wade into law.” Cory Booker agreed, telling BuzzFeed, “We need to pass it through the House and Senate, and I look forward to signing that law when I become president.” And Elizabeth Warren, as is her wont, published a thorough proposal on Medium calling for “federal, statutory rights that parallel the constitutional right in Roe v. Wade,” as well as “federal laws to preempt state efforts that functionally limit access to reproductive health care.”
But taking a federal approach to preserving—or, in a post-Roe world, restoring—abortion rights is fraught. Passing such a law would, of course, require Democrats to control the White House and both chambers of Congress, and perhaps even a supermajority in the Senate. It would also require the assent of the courts, and it’s far from clear that the conservative justices on the top court today would uphold it.
The simplest way to protect abortion rights would be at the state level. If Roe were overturned, each state legislature would have the power to ban or regulate the procedure. In blue states on the coasts and most purple states, there would be virtually no short-term impact on access. In red states throughout the South and Midwest, however, clinics would be forced to shutter almost immediately. At least five states have laws that automatically forbid abortion if Roe is ever overturned.
If those latter states continue to restrict abortion in a post-Roe world, voters could respond by voting in pro-choice politicians. (Nearly two-thirds of Americans support Roe, versus just 28 percent who want it overturned, though the average Alabaman feels quite differently.) Failing that, federal action would be required to ensure abortion rights for all Americans. While most candidates haven’t gone into much detail about what such action would look like, Warren’s plan is interesting in that it would either defang the threat to Roe before the Supreme Court can act or override the justices if they overturn it.
“Under the Supremacy Clause of our Constitution, federal law preempts state law,” she argues. “For this reason, the establishment of these federal statutory rights would invalidate contradictory state laws, such as the Alabama, Georgia, and Ohio bans. They would also end the political games being played by right-wing courts to try and narrow Roe’s protections. And because these federal protections would be valid on a variety of constitutional grounds—including equal protection and the commerce clause—they would ensure that choice would remain the law of the land even if the Supreme Court overturns Roe.”
Such protections won’t become law easily. Even if Democrats keep their majority in the House next year, and win the White House, they face an uphill battle in retaking the Senate—a necessary piece of the plan. Majority Leader Mitch McConnell has transformed the Senate from a legislative chamber into a machine for confirming judges whom conservatives hope will roll back abortion rights; it’s unlikely that he would turn around and embrace reproductive-rights legislation under a Democratic president. Even if Democrats gains a slim majority in the Senate, they might have to abolish the legislative filibuster to get their bills signed into law.
With Warren’s proposal, however, the greater threat may be from the Supreme Court itself. Virtually all of the cases involving abortion heard by the justices come from the states, not the federal government. Warren, a former law professor, said her proposals would pass muster under the Commerce Clause, which allows Congress to regulate interstate commerce. But it’s unclear whether a majority of the court’s current justices would agree with Warren’s position.
Reining in the federal government’s power to regulate the economy is a key objective of the conservative legal movement, so it’s no surprise that the conservative justices tend to be skeptical of what they see as expansive uses of the Commerce Clause. In 2012’s NFIB v. Sebelius, for example, Justices Clarence Thomas and Samuel Alito concluded that the Affordable Care Act’s individual mandate, which required Americans to buy health insurance, went beyond what the clause allows. So did Chief Justice John Roberts, though he later interpreted the mandate as a tax and voted to uphold it accordingly. At the same time, the court has also upheld federal laws that restrict abortion. In 2007, the court ruled in Gonzales v. Carhart that the federal Partial-Birth Abortion Ban Act did not violate Casey’s “undue burden” standard.
There’s a catch, however. The justices heard Carhart under the assumption that Congress could pass the law in the first place. In his concurring opinion, Thomas implicitly questioned whether the law could survive a frontal challenge to its constitutionality. “I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court,” he wrote. “The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”
That would leave the door open for states to challenge Warren’s law. If the Supreme Court justices are serious about curtailing abortion access in the United States, they might find it easy to strike down the law as an abuse of Congress’ legislative power. In that scenario, liberals might feel justified in taking more aggressive steps, like changing the court’s ideological composition by packing it with additional liberal justices. Or they will have to play the long game, as the conservative legal movement has been doing for decades, by imposing a litmus test on all judicial nominees. “As president,” Gillibrand wrote, “I will only nominate judges — including Supreme Court justices — who will commit to upholding Roe v. Wade as settled law and protect women’s reproductive rights.”