Commentary: The Supreme Court may toss Roe. But Congress can still preserve abortion rights

The Supreme Court’s recent decision to accept a major abortion case out of Mississippi has led to fear among many Americans that Roe v. Wade will be overruled next year. There is some chance of this – but that’s why it is crucial to understand that reproductive rights do not depend only on the justices.

Here’s the thing: Congress can, right now, by simple majority vote, protect those rights and nullify any threat posed by the Mississippi case or any other.

A year ago, when the last abortion case reached the high court, Chief Justice John Roberts cast the deciding vote to invalidate Louisiana’s abortion restrictions. Roberts surprised many by joining the four justices appointed to the court by Democratic presidents, one of whom was Ruth Bader Ginsburg. Today, however, Justice Amy Coney Barrett occupies the seat Ginsburg once did, leading some who support abortion rights to predict doom from the Mississippi case. Predictions are always tough in this business, but the far more important point is that this focus on the Supreme Court is misplaced. Reproductive rights need not depend at all on what the court does with Roe.

In Roe, the Supreme Court in 1973, by a 7-2 vote, reviewed a Texas law that criminalized abortion, declaring it unconstitutional. The court’s opinion meant that states could generally not restrict abortions in the first trimester and for much of the second, until the point of fetal viability. Thus, women had a right to choose what to do until approximately the 24th week of their pregnancies. Mississippi, however, recently passed a law in defiance of that framework, restricting abortion after the 15th week. This law so flagrantly defies the Supreme Court that nothing like it has had a chance of success in any court since 1973. (Texas, not to be outdone by Mississippi, last month outlawed abortions after the sixth week if a fetal heartbeat has been detected.)

This is subtle but important: When the Supreme Court hears a case about abortion, whether it was Roe in 1973 or the Mississippi case in the coming fall, it is not being asked to outlaw the practice of abortion. The court has only one power – the power of judicial review – which means all it can do is say whether a particular abortion restriction passed by a legislature is constitutional. The court cannot outlaw abortion itself. So if the court sides with Mississippi and says “you can have this law,” that simply means those states whose legislatures want such laws restricting abortion can have them. Other states that don’t want to restrict abortion do not have to. The court can’t compel abortion restrictions; it can simply permit them.

What this simple insight means is that there are two ways, not one, to safeguard reproductive rights: one by legislatures and the other by courts. And because the Constitution says that federal law reigns supreme over state laws, this insight also means that Congress can sweep away state laws that conflict with federal protections. Congress uses this power of “preemption” all the time – blocking states from having their own food and drug laws, employment rules, banking regulations and the like. Congress also frequently passes legislation to guarantee rights. Indeed, almost all of the major civil rights protections you have at your job or at restaurants or in hotels are guaranteed by Congress, not the courts or the Constitution. That is because the Constitution restricts only governments, not private individuals or corporations.

Right now, Congress has a bill before it that would capitalize on this insight and statutorily guarantee the reproductive rights recognized by the Supreme Court since 1973. Called the Women’s Health Protection Act and sponsored by senators including Kyrsten Sinema, D-Ariz., Charles Schumer, D-N.Y., Tim Kaine, D-Va., and Amy Klobuchar, D-Minn., it would codify the rights two generations have taken as part of American life.

This legislation can be passed by simple majority vote, and if enacted, it would remove cases like the Mississippi one from the Supreme Court’s consideration. The rights would now be guaranteed by Congress, making it impossible for the court to trim them back. The only way states could try is to file separate lawsuits seeking judicial review of such legislation, arguing that Congress’ law is unconstitutional because Congress lacks the power to enact it.

Such an argument has about zero chance of success. Since the New Deal, the Supreme Court has given Congress broad powers over interstate commerce, and the case here would be ironclad, on par with the rationales that undergird civil rights laws and their prohibitions on discrimination in employment, restaurants and the like. There is no way the Supreme Court could void such a law without collapsing the scholarly and judicial consensus about the reach of government power, present at least since the New Deal but with its roots going all the way back to the Bank of the United States case McCulloch from 1819.

Some in the Senate would try to filibuster the legislation, claiming 60 votes, not 50, is needed to pass it. But if there is ever a piece of legislation that merits a departure from the filibuster, this is pretty much it. Recall that it was the Republicans in the Senate who bypassed the filibuster when they confirmed President Donald Trump’s three nominees to the Supreme Court, including Barrett.

And Trump campaigned on the claim that Roe would “automatically” be overturned once his Supreme Court nominees were confirmed. It can’t be that one side gets to play by a “no filibuster” rule and the other side doesn’t. That is particularly so since one of the seats at the court was filled as a result of Republican senators’ gamesmanship over President Barack Obama’s nomination of Merrick Garland – gamesmanship that itself had the goal of trying to overturn Roe.

In this sense, Roe is unique – it occupies a role in Senate confirmations unlike any other case. If 50 is good enough to confirm a justice for life and against Roe, it should be good enough to democratically enshrine Roe into law, too. All it takes is 50 senators to sidestep the filibuster (or return it to its original roots, like a speaking filibuster) for this particular piece of legislation. And especially when such legislation is designed to preserve the status quo over reproductive rights and codify five decades of understandings, it is hard to see how senators representing a small fraction of the United States should be able to block the popular will.

With Republican senators such as Susan Collins, Maine, and Lisa Murkowski, Alaska, having gone on the record to support Roe, a Senate majority for the Women’s Health Protection Act is exceptionally likely. And although Democratic senators such as Joe Manchin, W.Va., have expressed general support for keeping current filibuster rules, the act is best understood as falling within an existing exception to the filibuster: lifetime appointments to the Supreme Court. Indeed, it is a far more modest reform than the 2017 decision by then-Senate Majority Leader Mitch McConnell, R-Ky., to end the filibuster for Supreme Court nominees.

Citizens can easily feel disempowered when issues they care about are reduced to analyzing the proclivities of nine people in Washington sitting in black robes. Since 1973, the questions about reproductive rights have been dominated by the court, not Congress. But now we have an opportunity to recalibrate the balance and guarantee reproductive justice for Americans in every state. We don’t need the court to protect these rights. We just need a majority vote in Congress.

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Former acting solicitor general Neal Katyal, author of “Impeach: The Case Against Donald Trump.” (Photo: Matt Sayles via The Washington Post)

Neal Kumar Katyal, a law professor at Georgetown University, formerly served as acting solicitor general of the United States.

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