Hastings Law Journal


Douglas A. Axel


The Freedom of Choice Act of 1993 is currently pending in both the House and the Senate. The purpose of this bill is to codify the Supreme Court's landmark holding in Roe v. Wade, which prohibited states from regulating abortion without a compelling interest for doing so. Like most things having to do with the right to abortion, the Freedom of Choice Act has been the subject of fierce political debate. Indeed, this political debate will likely result in the bill's demise.

This Note does not address these political issues, however. Instead, the author addresses a more fundamental constitutional issue: Does Congress have the legislative power to effectively prohibit state regulation in an area that can be considered at the heart of the states' police power? This Note examines Congress's assertion that it has constitutional authority both under its power to regulate commerce and its power to enforce the provisions of the Fourteenth Amendment. After arguing that basing the Freedom of Choice Act on Congress's commerce power would violate the reserved powers clause of the Tenth Amendment, this Note concludes that the bill would be a valid exercise of Congress's power to enforce the provisions of the Fourteenth Amendment.

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