We the People: How can Congress regulate policies like abortion given the 10th Amendment?

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What is the purpose of the 10th Amendment?

After the Supreme Court reversed Roe v. Wade, a number of states and the federal government looked immediately at how they could regulate abortion.

Most recently, Sen. Lindsey Graham, R-South Carolina, has introduced legislation in Congress that would ban abortion nationwide after 15 weeks of pregnancy. It has raised the question of who should be in charge of regulating abortion. Is it a power left up to the states, or can the national government implement a widespread policy? And if the Supreme Court left it up to states to regulate abortion, why then can Congress pass a law that would supersede the states?

The answer lies in the 10th Amendment.

The 10th Amendment says “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

When the Constitution was written, there was some concern the federal government would end up taking too much power away from the states, said Richard Seamon, law professor at the University of Idaho.

The original hope of the Constitution was that it would be clear that powers not given to the national government would remain with the states or people, Seamon said, but some people were concerned at the time that the national government would end up assuming powers that weren’t intended to be given to it.

“In the 10th Amendment, the national government was limited with what it could interfere with,” Seamon said.

At the time, the former colonists writing the Constitution didn’t want another “king-like atmosphere,” said Juandalynn Taylor, visiting assistant law professor and fellow at Gonzaga University.

“They were way more worried about what the federal government would do than at the state level,” Taylor said.

Any power not explicitly given to the federal government gets left to state governments or “to the people,” which includes political branches, such as Congress or the executive branch, Taylor said.

The 10th Amendment has helped determine how things like voting or banking powers are handled at a federal versus state level. How voting is done, for example, is left up to the states, even when citizens are voting for federal positions.

The 10th Amendment has come up in a number of other large policy changes nationwide, Seamon said.

One example dates to 1997, when the federal government attempted to require state and local law enforcement officers to run background checks on people wanting to buy guns. The Supreme Court ruled at the time that the federal government violated the 10th Amendment in that requirement.

Another example is when the Affordable Care Act was being debated. At the time, there was a lot of concern that the national government would be taking control of regulating the safety and health of citizens, which has historically been left up to the states, Seamon said.

“It was thought to be offensive to the 10th Amendment by many people,” he said.

Before Roe v. Wade was decided, abortion was regulated exclusively at the state level because it was considered an aspect of health, Seamon said. In Roe, the Supreme Court interpreted the Constitution as allowing for a right to privacy that it applied to the right to have an abortion, and struck down a Texas law limiting them.

But in Dobbs v. Jackson Women’s Health Organization, the Court reversed that, saying the right to an abortion should be decided on a state level. The Supreme Court had the power at a federal level to do that because of its role is to interpret the Constitution, Seamon said.

“We consider the Supreme Court to have a lot of power to interpret the Constitution,” he said.

In Dobbs, the Supreme Court said the Constitution did not protect the right to an abortion, and therefore, it should be left up to the states or to the people to decide.

After that decision, states began scrambling to pass laws that would either expand or restrict abortion access within their borders, but many people are concerned with the patchwork of laws, Taylor said. Congress is stepping in to try to provide national clarity. That’s where proposals such as Graham’s come in, though it’s unclear if a law that restrictive could pass through Congress.

The legislative and executive branches are the political branches of the government, and are therefore considered representatives “of the people,” Taylor said. Under the 10th Amendment, those branches can make nationwide laws because they “represent the people.”

“If there should be any sort of legislation that happens around abortion, then the political branch will have to establish it,” Taylor said.

It’s why Congress is looking at nationwide laws on topics such as abortion, gay marriage or interracial marriage.

All of those rights were put into question with the Dobbs decision, in which a concurring opinion from Justice Clarence Thomas said those rights could end up going back to the states as well.

If Congress passes a nationwide law regarding abortion, such as Graham’s, there could still be the opportunity for a citizen to sue, Taylor said.

If Congress passes any law regulating abortion, whether it be restricting access or expanding access, Seamon said the question could come back to the Supreme Court to decide whether the federal government has the right to regulate it.

Seamon said he does not think the Supreme Court will revisit Dobbs, but it could revisit how the 10th Amendment plays into the right to an abortion.

“Everyone agrees that the states can do it, but the question is whether Congress can do it,” he said.

Taylor, on the other hand, said there could be a possibility the Supreme Court revisits Dobbs in the future, but it will depend on the case.

“As long as there’s a case that creates a pathway that could decide Dobbs differently, then there’s always an opportunity to decide it differently,” she said.