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![handle is hein.crs/govejqv0001 and id is 1 raw text is: Congressional Research Service
nforming the legislitive debate since 1914
Regulating Reproductive Health
Women's Health Organization
Introduction
In Dobbs v. Jackson Women 's Health Organization, a five-
Justice majority overruled the Court's prior decisions in
Roe v. Wade and Planned Parenthood of Southeastern
Pennsylvania v. Casey, holding that the U.S. Constitution
does not confer a right to an abortion. By overruling Roe
and Casey, the Court maintained that it was returning the
regulation of abortion to the people and their elected
representatives.
Following Dobbs, bills that would establish a statutory right
to abortion and protect access to the procedure were passed
by the House in the 117th Congress, but, at this writing, not
considered in the Senate. At the same time, legislation that
would impose a gestational age limit on the procedure's
availability was also introduced in both chambers. Bills that
would promote abortion access, as well as those that would
restrict its availability, may be introduced in the 118th
Congress. This In Focus reviews the Court's Dobbs
decision, discusses Congress's authority to regulate
reproductive health services, and examines the regulation of
medication abortion, which represents a sizable portion of
all abortions in the United States.
Dobbs v. Jackson Women's Health
Organization
In overruling Roe and Casey, the Dobbs Court reconsidered
whether the Constitution guarantees a right to an abortion.
Noting the absence of any reference to abortion in the
Constitution, the Court nevertheless acknowledged that the
Fourteenth Amendment's Due Process Clause could
guarantee some rights that are not explicitly mentioned. The
Court indicated, however, that substantive due process
rights such as a right to abortion may be found only when
they are deeply rooted in [the] Nation's history and
tradition and are implicit in the concept of ordered
liberty. Reviewing common law and statutory restrictions
on abortion before and after the Fourteenth Amendment's
ratification, the Court concluded that the a right to abortion
is not deeply rooted in the Nation's history and traditions.
The Court emphasized, for example, that abortion was
prohibited in three-quarters of the states when the
Fourteenth Amendment was adopted, and 30 states still
prohibited the procedure when Roe was decided in 1973.
Although the Court found no historical support for a right to
an abortion, it considered whether a right to the procedure
was nevertheless part of a broader entrenched right that was
supported by the Court's other precedents, particularly
those involving the right to privacy. Citing its prior privacy
decisions concerning activities such as marriage and
obtaining contraceptives, the Court distinguished abortion
December 8, 2022
Services After Dobbs v. Jackson
from the rights recognized in those decisions because of the
critical moral question posed by abortion.
In addition to determining that the Constitution does not
confer a right to an abortion, the Court also considered
whether the doctrine of stare decisis should guide it to
uphold Roe and Casey. After evaluating five traditional
stare decisis factors, including the quality of the Court's
reasoning in those decisions, the Court determined that
continued adherence to Roe and Casey was inappropriate.
In overruling Roe and Casey, the Court not only held that
the Constitution does not guarantee a right to abortion but
also determined that abortion regulations will no longer be
subject to the viability and undue burden standards
established by those decisions. The Court held that, if
challenged, abortion regulations will now be evaluated
under rational basis review, a judicial review standard that
is generally deferential to lawmakers. The Court explained
that under rational basis review, a law regulating abortion
must be sustained if there is a rational basis on which the
legislature could have thought it would serve legitimate
state interests. These interests, the Court continued, may
include protecting prenatal life, the mitigation of fetal pain,
and preserving the medical profession's integrity.
Congress's Constitutional Authority to
Regulate Reproductive H ealth Services
Dobbs has led to renewed interest in Congress's authority
to set federal standards to protect or limit access to
abortion. The Constitution establishes a system of dual
sovereignty between the states and the federal government.
The federal government cannot force the states to enact or
enforce federal policies, but under the Supremacy Clause,
Congress can preempt state laws and thus prevent the states
from undermining federal policy. States generally have
broad authority to enact legislation on matters related to the
health and welfare of its citizens, while Congress may enact
legislation only pursuant to specified powers enumerated in
the Constitution. Congress's powers under the Commerce
Clause (U.S. Const. art. I § 8, cl. 3), Spending Clause (U.S.
Const. art. I, § 8, cl. 1), and Section 5 of the Fourteenth
Amendment are three potentially relevant enumerated
powers that Congress might rely on should it choose to
legislate on reproductive-health-related matters.
Under the Commerce Clause, Congress may regulate the
channels and instrumentalities of interstate commerce,
along with activities that substantially affect interstate
commerce. In determining whether an activity substantially
affects interstate commerce, courts consider factors such as
whether the regulated activity is economic in nature,
whether the statute contains a jurisdictional element
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