In Dobbs v. Jackson Women’s Health Organization, decided in June 2022, the Supreme Court overruled Roe v. Wade (as substantially modified by Planned Parenthood of Southeastern Pa. v. Casey). After recognizing that pregnant women do not have a federal constitutional right to choose to terminate their pregnancies, the Court held that abortion laws and regulations—like other health and welfare laws and regulations—would henceforth be sustained if there was a rational basis for them.

There are weighty legal, moral, medical, and political or policy arguments both for and against abortion, at different points during the gestation period and under varying maternal and fetal circumstances. But those are not the stuff of constitutional adjudication. The point of Dobbs, as the Court repeatedly said, was to return those arguments to the political process, meaning “to the people and their elected representatives.” Moreover, the Court repeatedly made clear its assumption that those elected representatives would be state legislators.

But that did not cool the passion of politicians and activists of all stripes for a nationwide rule that would implement their policy goals. When Republicans narrowly gained control of the House of Representatives in November 2022, for example, enacting a nationwide minimum restriction, such as Senator Lindsey Graham’s 15-week gestational age Protecting Pain-Capable Unborn Children Late-Term Abortions Act Protecting Pain-Capable Unborn Children Late-Term Abortions Act quickly became the focus of attention.

Some dedicated and sincere pro-life advocacy organizations, such as Susan B. Anthony Pro-Life America, have weighed in on the side of this or similar federal legislation, but they are putting their eggs (and political capital) into the wrong—and ultimately counterproductive—basket. The Late-Term Abortions Act cannot become law while the 60-vote threshold in the Senate still holds, and a 15-week ban, even if vigorously enforced, would affect only about 5% of abortions, reducing the number from perhaps 900,000 per year to perhaps 850,000.

But beyond these and other tactical concerns, the overarching objection to federal anti-abortion legislation is that it would be unconstitutional. Moreover, efforts to gin up arguments in a vain attempt to support the constitutionality of such a law would lead to pernicious doctrinal results that would be uncomfortably close to what ruled the day during the Roe and Casey regime.

The Lack of Congressional Power Under the Fourteenth Amendment

The chief reason that the proposed federal law cannot survive a constitutional challenge is that Congress lacks power to punish individual abortionists for plying their trade. That crucial threshold point is rarely mentioned in public debate because most attention has been devoted to the substantive reach of the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. Backers of a federal anti-abortion law insist that there is a federal right not to be murdered in the womb, refusing to acknowledge that there is no comparable federal right not to be murdered by an abusive parent at age 2, or by a rival gang member at age 22, or by a jealous spouse at age 52.

But those arguments put the “substantive rights” cart before the “lack of congressional power” horse. Even if courts applied the caprice of Roe v. Wade in reverse, locating a right to fetal life somewhere amongst the penumbras of the Constitution, and even if courts found that unborn persons constituted a suspect class that was being subjected to invidious discrimination, that would not save Senator Graham’s Late-Term Abortions Act. Congress would still have no power to remediate the wrong of abortion.

That is because the Act does not give even lip-service to the precursor to any discussion of the Fourteenth Amendment: the state action doctrine.

The government of the United States is a government of limited, enumerated powers. It has no power under the Fourteenth Amendment to criminalize the actions of individuals unless they are state or local government operatives or can be said to be acting “under color of state law.” To be sure, non-government actors can become state actors by conspiring with state or local officials or acting on their behalf, at their direction, or in response to their coercion.

But mere government “facilitation” or “encouragement,” such as, perhaps, the payment of Medicaid dollars, is not enough to turn private action into state action, unless it can fairly be said that the action—the abortion—is attributable to the state.

It is also sometimes argued that state inaction—the failure of a state to affirmatively protect against the deprivation of rights—constitutes the “denial” of rights necessary to trigger the Fourteenth Amendment and give the federal government corresponding power to take corrective action. In this view, the words “No State shall . . . deprive [or] deny” in the text of the Constitution should be read as if they meant “all States shall guarantee.”

But the idea that the federal Constitution imposes affirmative duties on the states to protect their own citizens against actions by private actors was rejected by the Supreme Court at least thirty years ago. In the 1989 case of DeShaney v. Winnebago County Department of Social Services, a young boy had been badly abused by his father, resulting in brain damage that would institutionalize him for the rest of his life. The boy and his mother sued government social workers and other local officials under a Civil War-era civil rights statute, claiming that their failure to remove the plaintiff from the father’s home, even though they knew about the abuse, deprived the boy of “liberty” without due process of law.

The Supreme Court handily rejected this claim. Although the defendants were concededly state actors, there was no “state action” for purposes of the Fourteenth Amendment. The defendants had not deprived the plaintiff of anything; whatever the deprivation, it had been caused by the boy’s despicable father, who was not acting under color of state law.

Under Senator Graham’s bill, individuals performing abortions after 15 weeks would be targeted for prosecution. But in the absence of a state law requiring (as opposed to tolerating) such abortions, those performing the abortions are private rather than state actors and thus beyond congressional reach under the Fourteenth Amendment.

The Interstate Commerce Clause Cannot Constitutionalize Federal Laws Regulating Abortion

Although the state action doctrine prevents Congress from passing laws regulating or criminalizing private conduct pursuant to its Fourteenth Amendment enforcement power, there are many federal statutes, both criminal and civil, that do directly prohibit private actors from interfering with or violating the federal rights of others. Congressional power to pass those laws is derived from the Necessary and Proper Clause as applied to bankruptcy, federal taxation, patents, the post office, and much more. But the default go-to source of power is the Interstate Commerce Clause—frequently the constitutional elephant in the room.

An outstanding case in point is the 1964 Civil Rights Act. Many people assume that the Act was passed pursuant to Congress’s power to enforce the Fourteenth Amendment because it was quintessentially an anti-discrimination provision, and thus well calculated to advance the goals of the Equal Protection Clause. But the authors of the 1964 Act were sufficiently unsure of their ground that they provided a fail-safe: provisions applicable to non-governmental actors were explicitly stated to be based on the Commerce Clause as well.

In a trio of cases decided on the same day in December 1964, the Supreme Court upheld the Act based on the Commerce Clause only, while studiously avoiding discussion of the Fourteenth Amendment. Relying on the Commerce Clause was not overly controversial in that case, given the pervasive evidence Congress had gathered about the deleterious effects that segregation in public accommodations had on economic development and interstate travel, including the notorious difficulties that black travelers had in planning a trip through the South.

In 2003, however, when Congress outlawed partial birth abortions that employed dilation and evacuation procedures, it relied exclusively on the Commerce Clause as its source of authority but did not point to any economic or commercial data. In the 2007 case of Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Ban Act under Roe and Casey as not imposing an “undue burden” on abortion, but it did not even consider the threshold question of whether Congress had the power to pass the Act at all because no party or lower court judge had raised the issue.

In a brief concurring opinion, Justices Thomas and Scalia noted that because the congressional power issue was not before the Court, they reserved the right to consider it in a future case. (Had the issue been properly presented by the parties in Carhart, Justice Thomas certainly, and Justice Scalia almost certainly, would have voted to strike down the 2003 law as beyond the reach of Congress under the Commerce Clause, although they both no doubt personally favored its restrictions on abortion procedures.)

The 15-week Late-Term Abortions Act now under consideration baldly asserts that “Congress has authority to extend protection to pain-capable unborn children” under the Due Process and Equal Protection Clauses of the Fourteenth Amendment and under the Commerce Clause. Congress’s attempt to reach the private conduct of abortion doctors under the Fourteenth Amendment without even pretending that there is any state action in the picture is a non-starter, as discussed earlier. But the question of whether the old fail-safe of relying on the Commerce Clause will fly is a somewhat closer case.

The federal government’s win-loss record on this issue since the New Deal is concededly impressive, but there are important countervailing straws in the wind, and the chances are good that Justice Thomas could find four more votes to strike down the law as beyond the power of Congress to enact.

In the 1995 case of U.S. v. Lopez, for example, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, which Congress had passed relying solely on the authority of its Commerce Clause power. A narrow majority of the Court held that talismanic invocation of the Commerce Clause was not enough: the mere possession of a firearm near a school could not “affect” any commercial or economic activity, even in the aggregate, although it is easy to list almost endless possible follow-on economic consequences of guns in schools, such as an increase in overall medical costs. But those consequences could just as easily follow from the commission of almost any crime, which demonstrated that the 1990 Act was a “police power” regulation, pure and simple. And the Constitution does not assign police powers to the federal government that it can bring to bear against individual citizens.

For the same reason, the Supreme Court invalidated the part of the Violence Against Women Act of 1994 that allowed a victim of sexual assault to sue her attacker, whether the attack was perpetrated under color of state law or not. In the 2000 case of U.S. v. Morrison, the Court again found that punishing the actor in such situations was beyond the scope of Congress’s Commerce Clause power, because the act itself had no economic or commercial element to it.

Perhaps most significant was the 2012 decision in National Federation of Independent Business v. Sebelius, which famously (or infamously) upheld the Affordable Care Act (Obamacare) requirement that individuals buy a certain level of pre-paid health care services as a valid exercise of Congress’s power to tax. But the Court only addressed the tax question because it had first held that Congress had exceeded its power under the Commerce Clause.

That initial part of the NFIB decision had major implications for the future development of the Court’s approach to the Commerce Clause, because although the economic and commercial impact of the individual mandate could not have been clearer, Chief Justice Roberts cogently explained that Congress was not engaging in any regulation of commerce. It was imposing a health and welfare regulation pursuant to a police power it did not have, and trying to pass it off as regulating commerce simply because so much money was involved.

Put Lopez and Morrison and NFIB together, and the pathway to invalidating a potential federal 15-week abortions restriction as an exercise of the Commerce Clause power is easy to see. Although millions of dollars per year are spent on abortions, and although Dobbs will assuredly cause some women to travel from one state to another to obtain an abortion, Senator Graham’s law is not a regulation of any of that. It is a police regulation designed to stop abortionists who are neither state officials nor acting under color of state law from performing some abortions.

The Real-World Politics of Abortion Regulation After Dobbs

Overthrowing the Roe and Casey judicial regime was a hard-fought 50-year victory for the pro-life movement, but it will have little actual impact unless followed by even harder-fought battles in the political and moral arenas. Today, more than a year after the Dobbs decision, public opinion largely favors abortion on demand up through roughly the 15th week of pregnancy. That means that women seeking abortions before that cutoff date—roughly 95% of all women seeking abortions—should be able to find a provider either in their own state or not far away. A federal 15-week ban would not change that result.

Public opinion can change, and people can work to change it. But until that change comes about, the ultimate message of Dobbs is that the people will erect the abortion regime they prefer in their own states, and they will be permitted to keep it.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].