Codify Roe v. Wade? Congress can’t.

A common thing I’m hearing right now is that if the Democrats want to keep Roe v. Wade, they need to codify it.

It isn’t that easy.

Congress can’t just pass a law on anything. That’s kind of the foundation of the whole States’ Rights argument, but where does it come from?

Article I, Section 8. Congress essentially has the power to: declare war, coin money, raise an army and navy, regulate commerce, establish rules for immigration and naturalization and establish federal courts and their jurisdictions. It also has the taxing power.

So if you follow Alito’s argument that rights have to be expressly rooted in the constitution, then the fix is for every state to pass an amendment to its state constitution, or for the federal government to amend the U.S. Constitution.

Part of the importance for the decisions in Loving v. Virginia, Lawrence v. Texas, Roe v. Wade, Casey v. Planned Parenthood, Obergefell v. Hodges and why they’ve been around for over 50 years, is that the US Constitution expressly grants us the right to freedom, life, liberty, and the pursuit of happiness. If you aren’t able to marry the person you love because the law says you can’t, if you can’t make love in a way that feels natural to you because the police may barge into your bedroom, or discuss your health with your doctor in privacy, how the heck can you claim to have life, liberty, or pursue happiness?

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