During the first trimester, Roe left a woman’s right to abort in the hands of her physician’s medical judgment. Subsequent to the first trimester, a woman’s right to abort her unborn child could be subject to state regulation, but only on the basis of the state’s interest in preserving the health of the mother. However, once an unborn child passed the point of viability the court held that a state may exercise more limiting regulations, including barring a woman from aborting the fetus, except in circumstances where her life or health is endangered (pg. 51).
Although the trimester framework was subsequently overturned by Casey the court has consistently ruled that the point of viability is significant and, post viability, states have a greater interest in regulating the practice of abortion to preserve the life of the unborn. Casey established a balancing test, requiring courts to weigh the benefits and burdens of abortion regulation when determining whether a law violated the constitution. This ambiguous balancing test was affirmed in Whole Woman’s Health v Hellerstedt (pg. 2).
Although the Court’s decision in June Medical overturned an abortion law, advocates of abortion reacted swiftly to the Court's deferential interpretation of state regulation of pre-viability abortions. They immediately calling for the codification of Roe through federal legislation, a call echoed by the Biden administration just prior to the President’s inauguration (pg. 3). For years, abortion proponents have desired federal legislation as a vehicle of further codifying the right to abortion, and top Democratic politicians such as Barbara Boxer and Barack Obama have supported such legislation (pg. 3).
The two most common pieces of legislation proposed by abortion advocates are the Freedom of Choice Act (FOCA), and the Women’s Health Protection Act (WHPA). FOCA is the more sweeping a broad of the two legislative agendas, attempting to bar government at any level of authority from denying or interfering with a woman’s right to abortion either before viability or when the woman’s health or life are impacted post viability (pg. 37). Although WHPA would also apply to all levels of governmental authority, the legislation would allow for bans on abortion before and after viability with exception for circumstances where “continuation of the pregnancy would pose a risk to the patient’s life or health” (pg. 37). In addition, WHPA would allow regulations to stand if the government can establish, by clear and convincing evidence, that the regulation “significantly advances the safety of abortion or the health of patients” and that the safety of such services and the health of patients “cannot be advanced by a less restrictive alternative measures or action” (pg. 38).
Congress has limited ability to enact such legislation.
However, the June Medical decision limits the ability of Congress, under Section 5 of the Fourteenth Amendment, to enact the type of legislation promoted by abortion advocates. This is because Congress’s authority under Section 5 is limited (pg. 35). Indeed, the Court ruled in City of Boerne v. Flores that Congress lacked the power to enforce limitations under the Religious Freedom Restoration Act on state and local governments, holding that Congress may not use Section 5 authority to effect a substantive change to the Due Process Clause because “the text of [section 5] [is] inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States” (pg. 35).
Functionally, this means Congress may pass laws to prevent violations of section 5 of the Fourteenth Amendment, but it may not pass laws altering the substance of the Amendment. Laws passed via Section 5 authority must target state and local laws and regulations that “have a significant likelihood of being unconstitutional” (pg. 36). Because the June Medical decision significantly reduced the probability that any given abortion regulation “contravenes a woman’s due process rights” it thereby curtailed the authority Congress has to enact federal legislation designed to undercut the ability of state and local governments to regulate abortion. (pg. 36)