Commentary
Leading Democrats have announced they want a federal statute overruling state laws that restrict abortion. In other words, they want Congress to legalize nearly unrestricted abortion nationwide. Obviously, such a law would intrude into an area of social policy traditionally left to the states.
Would the law pass muster in the Supreme Court?
The court’s decision in Dobbs v. Jackson Women’s Health (pfd)—overruling Roe v. Wade (pdf)—would be no barrier to a national abortion law. This is because the Dobbs case was decided on very different grounds: The 14th Amendment says that states may not “deprive any person of … liberty … without due process of law.” Dobbs ruled that “liberty” as the Constitution uses the term does not strongly protect the right to have an abortion—just as it does not strongly protect the right to practice plumbing without a license or to ignore state health regulations….