Could U.S. Congress override Ohio efforts to ban abortion?

COLUMBUS, Ohio (WCMH) – As the U.S. Senate is poised to vote on a bill to codify Roe v. Wade into law Wednesday, Ohio lawmakers scramble to keep up with the ever-changing abortion landscape in the country.

The scheduled vote on the Women’s Health Protection Act – which codifies the right to abortion into federal law – comes two weeks after a bombshell leak of the draft majority opinion outlining the Supreme Court’s plans to overturn the 1973 decision that legalized abortion circulated throughout the country.

While the bill seems unlikely to pass the Senate, it could dramatically shift the landscape for U.S. states like Ohio that are preparing to roll back abortion rights in anticipation of a Supreme Court decision expected to come in June, according to Lawrence Baum, emeritus professor of political science at Ohio State University.

“Even if the Constitution itself doesn’t protect the right, Congress has the power to add its own protection, in the same way that it prohibits employment discrimination,” Baum said. “It’s saying that even something that the Constitution doesn’t reach can be protected by statute, by law passed by Congress.”

What does the Women’s Health Protection Act do?

If enacted, Baum said the WHPA would supersede a Supreme Court decision reversing Roe v. Wade and also would void state legislation aimed at curtailing access to abortion, including two trigger bills pending in Ohio.

Under the bill, which passed the House but remains stalled in the Senate, governmental agencies are barred from prohibiting abortion before a fetus’ viability, which is generally considered to be the 24th week of pregnancy.

The bill also prohibits clinics or other agencies from requiring a patient to disclose their reason for obtaining an abortion or attending “medically unnecessary in-person visits” before receiving abortion services.

“It’s pretty sweeping in how much it limits the power of states to regulate abortion,” Baum said.

But even if it were to pass the Senate, Baum said the bill would likely be challenged in court.

“The states whose policies are in conflict with the law, and that’s probably a majority of the states – at least some of them would then seek an injunction to prevent the law from going into effect,” Baum said. “And what they would argue is that Congress didn’t have the power under the Constitution to enact the law.”

Congress relied on several constitutional powers granted to the legislature to argue it has the authority to enact the WHPA, including its ability to regulate interstate commerce and enforce the provisions of the Fourteenth Amendment, Baum said.

Given the Supreme Court’s current interpretation of Congress’ powers, Baum said it’s likely the conservative-majority court would hold that Congress doesn’t have the power to enact the WHPA.

“We don’t know for sure,” Baum said. “But it’s not at all certain that the court…