AIUI, if Roe is ever overturned, the issue of abortion then goes down to state level - and the blue states would keep abortion legal while (some) red states would ban it - but what would prevent Congress from passing a nationwide federal law that would support (or ban) abortion in all 50 states?
Under what authority would Congress pass such a law? The Federal government only has those powers which are specifically laid out for it, with everything else being the domain of the states. Some of those powers are now interpreted a lot more broadly than they were at the time the Constitution was ratified (in particular, the Interstate Commerce Clause does a lot of heavy lifting), but there’s nothing that regulating abortion would obviously fall under.
Could Congress make it illegal to cross a state line to get an abortion in a state where it’s permitted? Although I don’t know how that could ever be enforced.
How about the 14th amendment, if after an overturn of Roe personhood is then defined as from conception, or at least a very early stage; e.g. 3-8 weeks?
ETA: but how likely is it that Roe could be overturned; on what grounds could the SC claim that a previous court was in error?
Congress can pass any law they want and if the Supreme Court upholds or kills it under whatever reason, it’s the law. Before Heller, there wasn’t a personal right to own a gun, and after Heller, there was. Before Griswold and Roe, there wasn’t any right to privacy; afterwards there was. Congress decided to regulate in-state wheat growing; SCOTUS said it was OK, so it was.
I would think that, if SCOTUS found that the embryo/fetus has personhood, they could find a way to ban it under the 14th amendment, using some equal protection angle. So, before <Plaintiff>, embryos and fetuses didn’t have a right to life; after <plaintiff>, there is.
Simply make it illegal to use surgical instruments or drugs carried across state lines for abortions.
It’s illegal to grow marijuana at home because the feds say it will inevitably end up in the interstate traffic of forbidden narcotics. This was under the “Interstate Commerce” clause. Interestingly, though, in approving ACA, Roberts wrote that the feds had the power to levy a tax (which the “no insurance” penalty was according to him) but specifically stated they could not apply the Interstate Commerce clause to argue they had the right to regulate Health Insurance. So perhaps the latest iteration of SCOTUS is concerned about limiting the scope of the clause.
Even so, I cannot see any Justice except for Thomas and maybe Gorsuch going so far as banning a federal “Protection in Abortion Commerce Act” whereby the feds declare that they are preempting the abortion field and making it legal nationwide, superseding all state laws to the contrary.
If you take abortion out of it, and examine similar laws, it would not seem outrageous at all. Of course, with abortion in it, maybe Alito, Kavanaugh, and maybe a squicky Roberts would find newly revived interstate commerce clause jurisprudence.
Congress probably could pass a law making it illegal to cross state borders to get an abortion: That’s a pretty straightforward application of the ICC. Banning it entirely, even within a state, would be more difficult.
This would have been my answer.
The hypothetical “Protection in Abortion Commerce Act” would have to get through the Senate first. I doubt such a law has the votes to do so. If Dems abolish the legislative filibuster, then Republicans won’t need SCOTUS to overturn it, they can just do it the next time they’re in power.
I give you: bump stocks. Legal under my state law. Illegal under federal law.