Analysis | Can Congress resurrect Roe if it’s overturned? Well, it could try.

To that end, Democrats in Congress are calling on their colleagues to “codify Roe” in federal law. The Women’s Health Protection Act (WHPA) introduced by Rep. Judy Chu (D-Calif.) in June 2021 would do just that. Here’s what you need to know.

By framing the right to abortion as a matter of access to abortion services, the WHPA is taking a page from another major civil rights bill, the Civil Rights Act of 1964. When Congress sought to enforce anti-discrimination requirements in public accommodations such as hotels, public transit and restaurants, it grounded its authority to do so in the Commerce Clause.

Source: Analysis | Can Congress resurrect Roe if it’s overturned? Well, it could try.

I’ve been barking at the moon on Twitter about the leaked decision on Roe v. Wade, trying to point out that it is the job of Congress to pass policy law on the issue of abortion. If delivered as leaked, this decision doesn’t require an Amendment to restore the status quo, nor does the issue have to be relegated to 50 different State legislatures, which all have wildly-varying interpretations on what the policies should be.

Elizabeth Warren made some news by being candid, passionate, and coherent — an unfortunately all-too-rare combination for a sitting Senator — and basically said what I’ve been trying to say: “Congress can keep Roe v. Wade the law of the land; they just need to do it.” And then everyone ignored that, and we got Kamala Harris jumping up in front of a microphone, and delivering a charted symphony of dog whistles.

The article I’ve linked makes the point I’ve been thinking: Congress has gotten a lot of milage from the “interstate commerce” clause of the Constitution. Especially given the varied nature of State statutes governing abortion, it would seem to me that Congress is perfectly positioned to invoked the clause again in order to regulate abortion across the country. In fact, I would argue that the leak should be seen as a blessing, giving time to Congress to lead and be prepared to pass just such a law if and when the time comes.

There’s an open floor for actual leadership in this country. But, no. No one is stepping up. No one is being an adult here. So, instead, we’re letting all the crybabies have the mic. It’s disgraceful. This whole thing is just disgraceful. And I really just can’t wrap my head around how it seems our entire government of elected lawyers can’t figure this one out. I realize everyone wants to capitalize on the political persuasion that’s up for grabs here, given the coming midterms, but the party that takes control of the narrative, makes the case for Congress doing their job, and drafts a bill reflecting a compromise would score huge points in the next election.

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