What was so compelling to the justices nearly two decades after Roe is likely to be so after nearly five. The Court has endorsed the relationship between women’s equality and their reproductive freedom as an adequate basis for federal laws about pregnancy non-discrimination and family medical leave. Levelling the playing field in the marketplace, so that women’s distinctive reproductive lives do not handicap them, is an accepted basis for the exercise of congressional power.  It would be for a statute “codifying” Roe.

It is finally settled that Joseph Biden will become president of the United States on January 20 at about noon. His party, in its presidential platform, has promised to “codify the right to reproductive freedom.” At an October campaign event, Biden made the promise his own. Asked what he would do about abortion in light of Amy Coney Barrett’s nomination to the Supreme Court, Biden noted the “expectation” that Barrett would vote to overrule Roe. He then declared: “The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.”

Democrats control the House of Representatives. As vice president, Kamala Harris will possess the tie-breaking vote in a Senate equally divided between the parties. In 2019, she co-sponsored the proposed Women’s Health Protection Act, which would have codified Roe. At least a couple of Republican senators (Susan Collins, Lisa Murkowski) are also reasonably likely to vote to “codify” Roe.

The question is not if but when Congress will consider a bill making abortion on demand up until the third trimester—and possibly throughout pregnancy—the law of the land. When that time comes, the bill will probably become law. It would mean that even if the Supreme Court overruled Roe v. Wade, abortion would be just as available the day after the decision as it was the day before.

Could it really end up making no difference whether the Supreme Court finally overturns Roe v. Wade? Unfortunately, yes—unless the Court’s conservatives alter what they mean by “reversing” Roe. This would require a significant change in their constitutionalism—more specifically, in their understanding of how moral truths intersect with their job of faithfully applying the Constitution.

As things now stand, when constitutional conservatives speak of “reversing” Roe, they mean getting the Court out of the abortion fray. They have long maintained that the Constitution is silent about abortion: Neither a woman’s right to legal abortion nor an unborn child’s right to life is to be found there. This means that, as Justice Scalia wrote in 1992 in Planned Parenthood v. Casey (for himself, for Justice Thomas, and for the two dissenters in Roe, White and Rehnquist), “[t]he states may, if they wish, permit abortion on demand. . . . But the Constitution does not require them to do so.”

Could Congress “require them to do so”? The first question posed by the Democrats’ plans to “codify” Roe is the first question about the constitutionality of any piece of federal legislation: What’s the basis in the Constitution for this exercise of federal power?

Any bill designed to “codify” Roe will rely upon the two congressional powers cited in the 2019 WHPA. One is Congress’s power under section five of the Fourteenth Amendment to “enforce, by appropriate legislation” the guarantees of (for example) due process and equal protection of the law to all persons. The Court in Roe attributed abortion rights chiefly to the due process clause. If the Supreme Court overrules Roe, though, Congress could not rest any “codification” upon enforcement of a constitutional right to abortion, as there would be none.

The WHPA indicated two other bases for congressional power. One is the Fourteenth Amendment’s guarantee (as it has been interpreted by the Court for a half-century) of equality between the sexes. The never-enacted WHPA stated that “[a]ccess to safe, legal abortion services is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States.” And: “Abortion-specific restrictions single out health services used by women, and rely on and reinforce stereotypes about women’s roles, women’s decisionmaking, and women’s need for protection.”

The second asserted constitutional ground is Congress’s power over “interstate commerce.” In the WHPA, Congress concluded that state abortion restrictions “substantially affect interstate commerce in numerous ways.” Besides the fact that women’s participation in interstate commerce obviously affects it, the supporting findings here included the claims that state restrictions on abortions cause interstate travel (by patients and providers alike); that abortion providers “engage in a form of economic and commercial activity when they provide abortion services, and there is an interstate market for abortion services”; and that these providers “engage in interstate commerce to purchase medicine, medical equipment, and other necessary goods and services,” as well as to “employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.”

These findings and the conclusions they support have a distinguished pedigree. They are basically the same as those that saved Roe from reversal in 1992. Then, a plurality comprised of three Republican-appointed justices affirmed Roe because “for two decades of economic and social developments, [people] have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” It is as if the WHPA findings were lifted from the pages of Casey.

What was so compelling to the justices nearly two decades after Roe is likely to be so after nearly five. The Court has endorsed the relationship between women’s equality and their reproductive freedom as an adequate basis for federal laws about pregnancy non-discrimination and family medical leave. Levelling the playing field in the marketplace, so that women’s distinctive reproductive lives do not handicap them, is an accepted basis for the exercise of congressional power.  It would be for a statute “codifying” Roe.

Any potential constitutional impediment to “codifying” Roe would thus have to be found elsewhere in the Constitution. In most situations, this would be a limit based upon individual rights. For instance, even conceding Congress the power to regulate interstate trucking, no regulation of long-haul drivers may include authority for an “unreasonable search or seizure,” because that would contravene the Fourth Amendment. Is there a limitation of this sort that would block “codification” of Roe? It could only be a recognition that, as a constitutional matter, the unborn child is a human person with rights. This might look like a no-brainer. Anyone who confronts the scientific facts about human reproduction free of biases and of rationalizations for abortion can confidently judge that life begins at conception. Besides, both state and federal law now treat the unborn child as a person with rights to be respected. If you want concrete evidence that this is so, just get in touch with any of the scores of men who are languishing in prison for killing their unborn child—such as Jessie Livell Phillips, the first American convicted of capital murder for the intentional killing of his unborn child, by an act that also killed his wife, Erica. In other words, the law in many states and in the federal system already recognizes the unborn child as a person with the same right not to be killed that you and I have, with this fatal exception: The unborn child’s mother may kill him or her with impunity, for any or no reason. Erica Phillips had a constitutional right to do exactly what Jessie Phillips is going to be executed for doing.

We can be certain that some members of the Supreme Court see the facts and appreciate the glaring anomaly of the Phillips case. Probably a majority of the justices recognize the truth that life begins at conception. Yet no member of the Court since Roe has written this in an opinion. None has voiced any disagreement with the Roe Court’s decision to treat the relevant constitutional term—“person,” in the Fourteenth Amendment’s guarantee of the “equal protection” of the laws, including those against being killed, to every “person”—as a legal term of art whose meaning has nothing to do with the truth of when people begin. All those who have served on the Court since 1973 concur in the view expressed by Harry Blackmun in Roe, that the judiciary is hardly in a position to answer the “difficult question of when life begins.” They would all concur with Justice Scalia’s statement from the 1990 Akron abortion case: The “question of when life begins” is “non-justiciable.” Pro-life conservative justices have been unwilling to hold that the constitutional command to protect every “person” includes every person because they think it is none of their business, that it is beyond their competence.

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