Kevin Drum raises the question:
In the aftermath of the Dobbs decision, some conservatives are talking about passing a national ban on abortion. But I don’t think they can do that.
Drum goes on to explain that the federal government is a government of enumerated powers, and that it is not obvious that any of the recognized powers of Congress would allow it to ban abortion nationwide. He recognizes that the Court could make up a new doctrine and uphold a national ban, but thinks that would be a bridge too far:
. . . Still, there are limits, even for these folks. They just signed onto a huge decision that, in every possible way, supports the idea that abortion is strictly a state issue, not a federal one. They’d have a hard time changing that any time soon.
Then he adds this:
Unfortunately, this same reasoning applies to any attempt to “codify Roe.” Maybe I’m wrong, but I don’t think Congress can do this either. And if they did, the Supreme Court would obviously have no problem striking it down since that would be consistent with the text of Dobbs.
So, what does this mean for my proposal for a bipartisan federal settlement on abortion rights? (My proposal is for a 15-week minimum period of abortion as of right; after 15 weeks abortion would be allowed when pregnancies go awry. I also propose measures to improve access, especially for low income women.)
I agree that the Court could rule against federal legislation establishing a national right to abortion. It could also uphold such legislation. In both cases, the justices could do this while maintaining the pretense that they were just “calling balls and strikes”, or at least making a good-faith effort to vindicate grand constitutional values using accepted techniques of constitutional interpretation.
This reflects a serious problem with judicial review in the United States: the Supreme Court has way too much discretionary power, which is why the Court has become so politicized. Conservatives recognized that the vague words in the constitution and the open-ended nature of constitutional interpretation conferred great power on the Court, and through a combination of luck, organization, money, and persistence managed to stack the Court with Justices who are all too willing to use the Court’s power to achieve their shared, narrow ideological goals.
None of this means that the power of the Court is unlimited. The Court will get its wings clipped if it acts too imperiously in defiance of public opinion and the legitimately elected branches of government. This is why a settlement on abortion needs to be bipartisan. The most plausible way to secure abortion rights in the next decade is for Democrats to win the fight for public opinion and then work with Republicans on a popular, bipartisan agreement that the Court is scared to oppose. This is the most realistic way to get the Court to back off. If the Democrats happen to win a temporary governing majority and pass a bill codifying Roe without significant Republican support, the Court will not hesitate to strike down the legislation.