Senate Minority Leader Mitch McConnell told USA Today this week that it is “possible” that Congress could pass a national ban on abortion if the leaked draft opinion overturning Roe v. Wade is finalized. In the interview, McConnell confirmed that there would be nothing standing in the way of such national legislation. McConnell did not say that he was calling or planning for such a vote. He was stating that it would be legally possible if Roe is overturned. However, such a vote would leave the position of the GOP in an incomprehensible morass on its views in the area. For decades, Republicans have insisted that this issue is a state, not a federal, matter. It could also raise some difficult constitutional questions under federalism.
In the interview with USA Today published on Saturday, McConnell said:
“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,” he 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.”
The point of the comment is that, if there is no constitutional right to abortion, it is an area susceptible to legislative action on either the state or federal levels. Ironically, that is the same position as the Democrats who are seeking a federal protection of abortion to override the states.
There are some constitutional questions, however, that could be raised with either a federal protection or ban on abortion. Those questions include how states may be required to enforce such a ban. The Framers were deeply concerned about precisely this type of federal encroachment on state authority as James Madison discussed in Federalist #46. They created a system to support the “refusal to cooperate with officers of the Union.”
Such laws can unconstitutionally require states to enforce the federal law — raising so called “commandeering” issues that violate federalism protections. There can also be conditions that are viewed as so coercive in withholding state funds that they are considered unconstitutional.
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. 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. 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.
Ironically, if the GOP was to push such a ban, it would not only contradict its long-held view on state’s rights in the area but would rest upon a broad interpretation of interstate commerce (another view long opposed by many in the GOP). Under existing case law, Congress could claim that abortions have interstate elements due to the travel of individuals and involvement of national medical and administrative components.
It is doubtful that such a federal ban could pass in Congress. Indeed, some Republican members would most certainly oppose such a law like Sen. Susan Collins of Maine.
If this was a trial balloon, it quickly turned into a lead balloon. Pro-life members like Missouri GOP Senator Josh Hawley have already said that they would not back a federal ban. Likewise, Arkansas Gov. Asa Hutchinson (R) said on Sunday that such a national ban would be “inconsistent with what we’ve been fighting for.”
Notably, McConnell reaffirmed that (unlike the Democrats) the GOP would continue to stand by the filibuster even if they take control of the Senate. That effectively guarantees that no such federal ban could be passed.