Opinion | Congress can’t legislate abortion. Schumer and Graham are both wrong.

In its Dobbs v. Jackson Women’s Health Organization ruling, the Supreme Court reversed Roe’s discovery of a woman’s right to an abortion in the 14th Amendment, which prohibits the state from depriving anyone of “life, liberty, or property, without due process of law.” The court concluded in June that Roe had fundamentally erred because it nationalized a right neither established by the constitutional text, as originally understood, nor developed over the course of American history and tradition. When the Constitution is thus silent, the court held, the political process in the states will decide abortion, just as it does the death penalty and euthanasia.

As Justice Samuel A. Alito Jr. declared for the majority: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Quoting Justice Antonin Scalia’s scathing dissent in Planned Parenthood v. Casey in 1992, Alito asserted how the Constitution should handle most moral issues: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Alito and the majority bluntly concluded: “That is what the Constitution and the rule of law demand.”

Enterprising members of Congress were not deterred. Immediately after the Dobbs draft opinion leaked in May, Senate Majority Leader Charles E. Schumer (D-N.Y.) proposed that Congress codify Roe. He could not even persuade a majority of his own Democratic-controlled Senate to support him. Now, Sen. Lindsey O. Graham (R-S.C.) has this week introduced legislation to ban abortion nationwide after 15 weeks of pregnancy, while allowing states to adopt even stricter limits.

Schumer and Graham and anyone else who attempts a similar gambit should be put on notice: The Constitution does not permit Congress to directly overturn a Supreme Court decision. In the 1997 case City of Boerne v. Flores, the court confronted the Religious Freedom Restoration Act, legislation that contravened a court ruling that had itself overturned earlier court cases protecting religious freedoms. Congress claimed that it had the power under Section 5 of the 14th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the 14th Amendment.

Congress similarly might claim that it has the right to enforce its own understanding of “liberty” in the due process clause to include abortion (Schumer), or of “life”…