Senate Minority Leader Mitch McConnell (R-KY) told a reporter last week that it is possible that Congress might enact a nationwide ban on abortion if the final decision the Supreme Court issues in Dobbs v. Jackson Women’s Health Organization is consistent with the draft opinion that was leaked. Andrew McCarthy wrote a column published by National Review on Sunday that indicates McConnell’s comments are likely being overemphasized by abortion supporters.
McConnell’s critics appear to wrongfully sense that Republicans support a national abortion ban.
The court has confirmed the authenticity of the draft opinion written by Justice Samuel Alito, but has stressed it does not necessarily indicate what the court’s final ruling will be. The draft would reinstate the constitutional status quo before the 1973 decision in Roe v. Wade. That would mean that abortion would be an issue left to each state to regulate or ban as its people and elected representatives see fit.
McConnell did not suggest in his comments that there should be a Congressional ban on abortion, but only acknowledged that such legislation is possible under the Constitution.
Congress has previously used the authority it is provided by the Commerce Clause to regulate abortion. In 2003, it enacted the federal partial-birth abortion ban. The Supreme Court upheld that law in 2007 following a barrage of legal attacks.
Even conservatives who believe that the Commerce Clause power has been extended much farther in the last 90 years than the framers imagined it would be must recognize that federal regulation of the healthcare industry has been greatly expanded using that power over the last half-century.
There is no logical basis to believe the Supreme Court will not continue to uphold the power of Congress to regulate abortion because it has an impact on interstate commerce.