Dems' goal of codifying Roe faces major legal obstacles, constitutional scholar says

Democrats have launched an effort to codify Roe v. Wade into federal law in the wake of the leak of Supreme Court Justice Samuel Alito's draft majority opinion that would overturn the landmark case, but passing such a law would come with legal barriers of its own.

"There are potential constitutional challenges that could be raised," constitutional law expert Jonathan Turley told Fox News this week. "There can also be conditions that are viewed as so coercive in withholding state funds that they are considered unconstitutional."

Turley's comments come as Senate Democrats failed in their attempt to pass a bill to guarantee abortion access nationwide Wednesday, with Sen. Joe Manchin, D-W.Va., joining all 50 Republicans to sink the bill.

Democrats have vowed to continue the fight, calling on voters to elect pro-choice lawmakers in this year's midterm elections who will help codify Roe.

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But Turley believes such an effort could end right back at the Supreme Court depending on how Democrats attempt to craft the legislation. He pointed to multiple cases in which the Supreme Court ruled that the federal government could not compel states to enforce federal mandates, including instances in which the federal government threatened to withhold funds from states.

"In 1992, in New York v. United States, the Supreme Court invalidated part of the Low-Level Radioactive Waste Policy Amendments Act of 1985 as commandeering," Turley said. "In 1997, in Printz v. United States, the Supreme Court held that the federal government cannot order states or cities to enforce federal law. 

"In Independent Business v. Sebelius (2012), the court held that the federal government could not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs," he continued. "In Murphy v. NCAA (2018), the court again warned that Congress could not take any action that ‘dictates what a state legislature may and may not do’ in such policy or program disputes."

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Writing for the Washington Post last week, Amanda Hollis-Brusky noted that Democrats are likely to focus their effort to codify Roe on the Constitution's commerce clause. Hollis-Brusky pointed out that the Women's Healthcare Protection Act that failed in the Senate was framed similarly to the Civil Rights Act of 1964, which the Supreme Court eventually upheld under the federal government's power to enforce interstate commerce.

But Hollis-Brusky noted that the Supreme Court's conservative wing has become much more hostile to commerce clause justifications since that ruling, casting doubt on whether today's conservative majority would uphold such a law.

One landmark abortion case, Gonzales v. Carhart, could offer hints into how the justices would rule on federal abortion legislation today. In a challenge to the Partial-Birth Abortion Ban Act of 2003, the court ruled, 5-4, to uphold the federal restriction. 

Writing for the court's conservative majority, Justice Anthony Kennedy argued that the court in the past "has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."

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Kennedy was joined in that opinion by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. But in a concurring opinion, Thomas noted that the court left the question of the commerce clause unresolved.

"I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it," Thomas, who was joined in the opinion by Scalia, wrote.

Turley agreed that the commerce clause could present an avenue for federal lawmakers.

"Under existing case precedent, there is a solid claim that Congress has authority under interstate commerce," Turley said, but noted that the "Framers were deeply concerned about precisely this type of federal encroachment on state authority."

But without the protection of Roe, any Democratic effort to codify abortion rights could also just as easily be reversed if Republicans regain control of the government.

Senate Minority Leader Mitch McConnell, R-Ky., hinted at such an idea earlier this week, arguing it would be possible for a Republican majority to pass abortion restrictions at the federal level.

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"If the leaked opinion became the final opinion, legislative bodies – not only at the state level but at the federal level – certainly could legislate in that area," McConnell said. "And if this were the final decision, that was the point that it should be resolved one way or another in the legislative process. So yeah, it's possible."

But McConnell also cautioned that the official Supreme Court ruling has yet to be handed down, meaning justices who were in the majority at the time could still change their votes.

"All of this puts the cart before the horse," McConnell said.