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Congress Can’t “Codify Roe v. Wade”

Last week, President Biden urged the US Senate to abolish the filibuster so that Congress could “codify Roe versus Wade. But the filibuster’s 60-vote requirement isn’t the most serious obstacle to the Women’s Health Protection Act, a Democratic bill passed by the House, or indeed to the more modest Reproductive Choice Act of Republican Senator Susan Collins. The most serious obstacle is the Constitution.

The Constitution is silent on abortion, as the Supreme Court ruled last month in Dobbs v. Jackson Women’s Health Organization. But it clearly speaks to the limits of the power of Congress. The most recent version of the Women’s Health Protection Act cites no congressional authority, but earlier versions pointed to Section 5 of the 14th Amendment and the Commerce Clause of Article I.


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