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Congressional Research Service
nforming the legislitive debate since 1914
0
Updated April 17, 2023
Regulating Reproductive Health Services After Dobbs v. Jackson
Women's Health Organization
Introduction
In Dobbs v. Jackson Women 's Health Organization, a five-
Justice majority overruled the Supreme 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 have established a
statutory right to abortion and protected access to the
procedure were passed by the House in the 117th Congress,
but were not considered in the Senate. At the same time,
legislation that would have imposed 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, have been
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 from before and after the Fourteenth
Amendment's ratification, the Court concluded that 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
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, it
also determined that abortion regulations will no longer be
subject to judicial review under 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
the economic nature of the regulated activity, whether the](ViewImageLocal?handle=hein.crs/govelhk0001&div=1&collection=&method=preview&ext=.png&size=3)