Here are the federal responses to restrictions on freedom of choice

Here are the federal responses to restrictions on freedom of choice
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Several Democratic presidential candidates have announced their support for a federal response to laws recently passed in Alabama, Georgia, and elsewhere restricting the right for women to choose. They have rightly anticipated that, if and when the Supreme Court considers a challenge to one of these laws, the right to choose is unlikely to emerge unscathed.

Senator Elizabeth WarrenElizabeth WarrenDemocrats brush off calls for Biden to play hardball on Cabinet picks What's behind the divisions over Biden's secretary of Labor? Alito to far-right litigants: The buffet is open MORE, for example, envisions a federal statute enacted pursuant to the authority of Congress to regulate commerce that would, thanks to the supremacy clause of the Constitution, invalidate contrary state legislation. Setting aside the practical problem of getting such a bill through the Repblican majority Senate, there are two potential obstacles in Article I of the Constitution and the inherent mutability of legislation.

Congress frequently relies upon its Article I authority to regulate interstate commerce. The Supreme Court has held this power extends to activities that do not cross state borders but have a substantial effect on interstate commerce. Congress has turned to its commerce power to enact laws prohibiting private discrimination on the basis of age, race, and gender.


But the Supreme Court has imposed limits on this authority of Congress. One requirement is that when a law focuses on a particular activity, that activity must be economic in nature. In a 1995 case, United States versus Alfonso Lopez, the Supreme Court decided that Congress could not regulate the mere possession of a gun in a school zone because that activity is not in itself commercial. The statute proposal by Warren would prohibit states from interfering in the provision of medical care by health providers and the ability of patients to access such medical care.

Though the provision of medical services has an economic component, the devil is in the details. Congress believed it was addressing commerce in the 1995 case because a gun was likely in commerce before it came into possession and gun possession in schools has quantifiable economic consequences. A majority of the Supreme Court still viewed the singular act of gun possession as lacking an inherent commercial component.

The need to protect choice obliquely to satisfy the commerce clause test leads to a second potential obstacle to a federal response, which is that any resulting legislation is likely to be quite technical. It could prove an easy target for tinkering by future sessions of Congress, if not outright abandonment should the political makeup of either chamber change.

Furthermore, to the extent the implementation and enforcement of any legislative mandate on choice is left to an executive agency, such as the Department of Health and Human Services, its impact could be blunted. As the retrenchment of rules governing environmental protection and the Affordable Care Act demonstrates under this administration, a president can act in significant ways to thwart the intent of a legislative mandate.

These are some of the reasons why we should prefer individual rights to be secured through constitutional law and judicial enforcement. But that does not necessarily mean such protection has to be found in the original text. Advocates seeking to challenge restrictions on choice might find state courts willing to view their state constitutional commitments to due process and equal protection more generously than the Supreme Court.


Consider the recent decision of the Supreme Court of Kansas in Herbert Hodes and Traci Lynn Nauser versus Derek Schmidt and Stephen Howes. The majority ruled that the state constitution protects a right to personal autonomy, including a right of a woman to make decisions about her own body. The thoughtful treatment of the text of the state constitution, with attention to precedent, is an example for other courts and for advocates.

This is not to say that state constitutional protection of the right to choose is anything other than a second best proposition. Many state courts would not be easily persuaded by the Kansas decision. But they would still have to reckon with it, as well as with similar precedents from other states, like Massachusetts. More importantly, the strong value of the Kansas decision is available right now to those seeking to challenge new restrictions in other states. Indeed, it is a key alternative to simply waiting and hoping that lawmakers will move to protect the right to choose any time soon.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”