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Research Service
Congressional Authority to Regulate Abortion
July 6, 2022
On June 24, 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women 's Health
Organization, which overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v.
Casey and held that there is no constitutional right to abortion. (For more detail on the Dobbs decision
and its impact, see this CRS Legal Sidebar.) The Dobbs majority emphasized that its ruling would return
the issue of abortion to the people's elected representatives, and that those elected officials-not the
courts-would decid[e] how abortion should be regulated. Although existing federal laws prohibit
certain abortion procedures and protect individuals obtaining reproductive health services from
intimidation, most abortion-related matters are regulated at the state level. After Dobbs, such state
abortion regulations will generally be sustained by federal courts so long as they have a rational basis.
(For more information on current state abortion restrictions, see this CRS Legal Sidebar.)
Dobbs has generated heightened interest in federal abortion legislation, and raises important issues about
the scope of congressional power to regulate abortion under the Constitution. This Sidebar begins with an
overview of Congress's constitutional authority to enact legislation and some limits on those powers. It
then discusses in more detail three enumerated powers potentially relevant to legislative efforts to expand
or restrict access to abortion-the Commerce Clause, the Spending Clause, and section 5 of the
Fourteenth Amendment-and the constitutional limits of those powers.
Limits on Congressional Authority
The Constitution establishes a system of dual sovereignty between the States and the Federal
Government. States generally have broad authority to enact legislation on matters related to the health
and general welfare of its citizens. In this vein, the Supreme Court has recognized that there are certain
subjects, often of local concern, where states historically have been sovereign, such as issues related to
the family, crime, and education. The states' broad authority is subject only to limitations imposed by the
Supremacy Clause, which makes federal law the supreme Law of the land and prohibits states from
contravening the Constitution or lawful congressional enactments.
In contrast, Congress may only enact legislation under a specific power enumerated in the Constitution,
and cannot act beyond the scope of its powers to intrude impermissibly on state sovereignty. In addition,
under the anti-commandeering doctrine, Congress may not pass laws requiring states or localities to adopt
or enforce federal policies. While Congress cannot force the states to execute federal policies, under the
Supremacy Clause it can preempt state laws and thus prevent the states from undermining federal policy.
Congressional Research Service
https://crsreports.congress.gov
LSB10787
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govehmt0001&div=1&collection=&method=preview&ext=.png&size=3)
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