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Wednesday, February 8, 2023

Congress Can’t ‘Codify Roe v. Wade’

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President Biden last week urged the U.S. Senate to abolish the filibuster so that Congress can “codify Roe v. Wade.” But the filibuster’s 60-vote requirement isn’t the most serious impediment to the Women’s Health Protection Act, a Democratic bill that passed the House, or for that matter to Republican Sen. Susan Collins’s more modest Reproductive Choice Act. The most serious impediment is the Constitution.

The Constitution is silent on abortion, as the Supreme Court held last month in Dobbs v. Jackson Women’s Health Organization. But it speaks clearly about the limits on congressional power. The most recent version of the Women’s Health Protection Act doesn’t cite any source of congressional authority, but earlier versions pointed to Section 5 of the 14th Amendment and Article I’s Commerce Clause.

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