Prohibition was adopted in a two-step process. First, the Constitution was amended to mandate prohibition within a specified timeframe; then, a federal statute was approved to provide more specifics and give vague terms additional meaning. If Roe is overturned, the filibuster is abolished, and the GOP wins control of the presidency and Congress, would you expect the same process to be followed to prohibit abortions?
No. While I haven’t been able to find any authority explaining why the two-step process was used, there are two obvious reasons for it. First, the amendment made repeal more difficult; and second, the jurisprudence regarding the Commerce Clause was very different than it was today. The supporters of Prohibition undoubtedly felt that there would be serious constitutional objections to a measure that regulated behavior going well beyond the sale of alcohol across state lines. The history of the Supreme Court in the first years of the New Deal tells us that the apparent concern was justified.
While the Court has retreated slightly from its ultrabroad interpretation of the Commerce Clause in the last several years, there is no reason to believe it would strike down a nationwide ban on abortion on the basis of a lack of federal authority to impose it. A constitutional amendment mandating the ban, which is impossible in today’s world, would thus be unnecessary. The nationwide ban is consequently within reach of the GOP’s social conservatives; all it requires is a judicial decision for which a majority may well already exist, a sweeping electoral victory, and the will, either on the part of the right or the left, to ditch the filibuster. All of these developments are easily imaginable.