Author: Elizabeth Bernal and Brandon V. Stracener

The commerce clause threat to state abortion rights

Overview In September 2022 Senator Lindsay Graham proposed a federal law that would ban abortions after 15 weeks into pregnancy.[1] This sets up a constitutional conflict with states that now have express state constitutional protections for abortion rights (California, Michigan, and Vermont). This article considers whether congressional power under the U.S. Constitution’s commerce clause “to regulate commerce” among states allows the federal government to override statewide abortion protections and enact a nationwide abortion ban. The answer is unclear because the U.S. Supreme Court’s commerce clause cases are inconsistent. Past decisions read congressional power over economic activity expansively, which suggests that...