As you probably know by now, a leaked draft Supreme Court opinion indicates there may well be five justices prepared to overrule Roe v. Wade. For a long time, many assumed that if Roe were to be overruled, abortion policy would be "left to the states." That will indeed happen in the short run. But such a state of affairs might not last. Many Republicans have been advocating nationwide bans on abortion, including very sweeping ones that would forbid all abortions more than six weeks into a pregnancy. For their part, many Democrats, including Senate Majority Leader Chuck Schumer, back nationwide legislation protecting abortion rights.
Would such laws be constitutional? I have written about this issue twice before (see here and here). The bottom line is that current Supreme Court precedent likely would enable Congress to ban most, if not all, abortions if it wanted to. That's because the Court has endorsed a ridiculously broad interpretation of Congress' powers to regulate interstate commerce. But that precedent might be pared back, thanks in part to that unlikely champion of abortion rights, Clarence Thomas.
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