Congress and Abortion




The thirtieth anniversary of Roe v. Wade leads law professor Glen Reynolds to raise the issue of whether Congress has any power to legislate on the subject. This opinion piece actually refers to the enumerated powers of Congress as set out in Article 1, Section 8, to argue that Congress, in its constitutional role, must leave the issue alone.

The actual issue of Roe v. Wade, however, is whether the Supreme Court was correct in ruling that the 14th amendment to the constitution extends to persons a recognition of a right which includes the right to an abortion in the face of state legislation to the contrary. The rights of sui juris persons were certainly given federal recognition in the language of the 14th amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Further, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." So clearly the issue is back before Congress, by way of the back-door of the enforcement clause of the 14th amendment. The amendment seems to freeze for all time, as a constitutional matter, the rights and immunities of free (sui juris) persons as they existed (or should have been recognized as existing) as of the time of enactment of the amendment (1868). Whatever the law on abortion was at that time becomes then a vital consideration, because whatever rights a citizen had relevant to abortion at that time was a right (either a privilege or an immunity) which, thereafter, a State could not abridge.

No wonder the Supreme Court does not want to touch the privilege and immunities clause.