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Opinion: Why Codified Law Returns to the Supreme Court

Victoria Noorus, a professor at the Georgetown Law Center, was the chief lawyer for former Vice President Joe Biden of the Department of Justice. Was there. She is a Special Advisor to the Ministry of Justice and the House Judiciary Committee. Her views expressed in this commentary are her own. SeeOther Opinions on CNN.

(CNN)President Joe Biden and many others legitimately demand Congress to codify the Roe v. Wade case. And select abortion, which has established national rights by law. He said Thursday that he would support the filibuster"to codify the Roe v. Wade case".

After all, the Supreme Court explained the decision ofDobbs v. Jackson Women's Healthas returning abortion questions to people and their elected representatives. did.
Currently, there are too few Senate votes to pass such a law. But that could change if the Democrats turn over one or two seats with a senator who supports keeping all seats in the Senate and abolishing filibuster. Of course, politics can go in the opposite direction. If Republicans support the House of Representatives and the Senate, some can expect to promote a national ban on abortion.

However, there is a problem in thinking that, constitutionally, federal law will solve this problem and prevent abortion from returning to the Supreme Court. Even if Congress passes a law codifying the Roe v. Wade case, it does not mean that the Supreme Court of Dobbs, which has broken the precedent, does not have five votes to strike the new law.

It's a matter of people who say the court is simply returning this matter to the people. In any case, if Congress tries to pass the bill, it could come back to the judge's lap. The Supreme Court retains the power to overturn people's will, as expressed in parliamentary action. That is the meaning of the power of judicial review. Quoting the most famous case in the Constitution,Marbury v. Madison, the court "says what the law is."

The federal Roe-protected draftsman must not be a starry sky. First of all, people should stop using the term "codified egg". This phrase can be misleading. Statutoryization in this case means establishing the right to statutory law, which is possible, but the term "Roe" refers to the Supreme Court's decision, and Congress overturns the decision of a particular Supreme Court. , Do not have the authority to revive the overturned case.

For example, when Congress tried to dismiss Miranda vs. Arizona in 2000, the court said "no" in a case calledDickerson vs. United States. Our decision to interpret and apply the Constitution. Three years ago, theyBerne city v. The same thing was said in Flores: "Parliament does not exercise its rights by changing what the rights are. [Parliament] has no power to determine what constitutes unconstitutional." The moment Roe's codification was signed by the President, it was challenged as unconstitutional and we can return to where we started in the Supreme Court.
The current codification bill,Women's Health Protection Act, states that Congress has power over "commerce" and that abortion involves commerce. It is partly based. However, this argument has its weaknesses. First, the court, not the parliament, ultimately decides what a commercial transaction is.
Even when Congress created an incredibly strong fact record of commercial ties, the courts have found it appropriate to reject it. In the 2000 case,US vs. Morrison, the Supreme Court stated that sexual assault was not a commercial transaction and therefore domestic economic law allowing survivors to sue attackers was unconstitutional. rice field. Data shows the link betweenandwomen's economic outlook and gender-based violence.

Second, if abortion is a crime, as opponents claim, Morrison's reasoning applies, except for parliamentary action. Morrison modified the court's old liberal commerce analysis-Parliament was able to legislate even those vaguely related to commerce-and banned Congress from engaging in local non-economic activities. .. Just as Morrison's court described a gender-based attack as a crime, a court devoted to defeating Congress's ability to recover Law described abortion in uneconomical terms as an attack on fetal life. can. At that point, the downstream "impact" on women and national commerce is not important to constitutional issues.

Third, because Dobbs gave "Fetal Life" a constitutional benefit, the law to extinguish that constitutional benefit is fatal to Dobbs itself. It may be considered inconsistent.
Indeed, there are counterarguments and precedents that show that Congress has broad authority to regulate markets and health care, but the exact same court that wants to send an abortion to the state says Since the mid-1990s, it has reduced women's rights and parliamentary powers to protect women. Congress has even questioned affordable care laws, theconstitutional basis for passing the health insurance program of former President Barack Obama. ..
Some may think that the Fourteenth Amendment's Equal Protection Clause should help. Judge Ruth Bader Ginsburg of the late Supreme Court has famously stated that the issue of abortion is one ofequality, not a right to privacy.
However, in the last two decades, the Supreme Court has created a set of rules that limit the power of Congress to provide relief for violations of the Fourteenth Amendment. All legislation passed by Congress must be "congruent and proportional" to unconstitutional law.
To make matters worse, Dobbs hasno equal benefit to procedures that can only be applied towomen,Geduldigv. Aielloconsiders pregnancy discrimination unconstitutional.

Sad but true: The Constitution does not give you the right to dismiss you because you are pregnant. That right exists only for Congress, and because the right focused on commerce. Who knew that commodities received more federal equality protection than women, which is essentially what Dobbs holds.

Some might say this is fine. If Congress cannot codify Law, it cannot impose a national abortion ban. But that does not come from the existing Supreme Court case law. Depending on how the law is drafted, courts can invalidate Roe's codification and uphold the country's abortion ban. How.

The Supreme Court can determine constitutional issues and may invalidate Roe's codification. On the other hand, if a country's ban is written in the right way, it can survive the attack and find a simple home within the commerce clause. Such bans focus on commerce-except for abortion or uncompensated abortion service payments. The law is more focused on commerce than the current Roe codification bill.

Is there an answer to this for Roe's codification proponents? yes. Very careful drafting, Senate and House hearing rafts, and clear ideas about opponents. The bill cannot be said to be changing the Constitution and cannot rely on the term "right to abortion". After Dobbs, there is nothing.

Draftsmen need to focus on words that are already upheld under the commerce clause, which includes the regulation of medical procedures. In fact, we need to include words that specifically reject Morrison's narrow analysis. "Parliament admits that abortion is an economic activity and cannot be reduced to operations or assault."

Hearings are to provide factual evidence of the link between commerce and abortion. Must be carried out at.

Members need to emphasize why women's real life has constitutional protection that goes beyond the constitutional protection of potential life. They refute Dobbs's analysis of the Fourteenth Amendment's Equal Protection Clause, where women are equal "citizens" under the "citizenship" clause of the amendment, empowering women to make medical decisions. It must be made clear that denying violates the fix. The

bill must include language calling for the "privilege and exemption" clauses of the 14th and 9th Amendments, which were not covered by the majority of Dobbs. Because these texts may uphold the right to abortion. .. They should refute the various originalist arguments made in the opinion of unstable history.

Conclusion: The court is not "out of the way" from the abortion business. It's just getting started.