Our Partially Constitutional Partial Birth Abortion Ban
Patterico argues that the federal Partial-Birth Abortion Ban Act of 2003, which passed overwhelmingly yesterday, is constitutional, although he concedes that it will probably not be upheld by the courts. He makes a convincing case, as far as it goes. However, he does not discuss the real constitutional flaw with this federal ban: Congress has no more constitutional authority to ban partial-birth abortion than it does to ban “total-birth abortion,” i.e., murder. That’s part of the police power, which Constitution clearly leaves to the states.
Interestingly enough, the authors of the federal ban don’t make much of an effort even to pretend that the Partial Birth Abortion Act is intended to regulate interstate commerce, coin money, build post roads, or act according to any of Congress’s other constitutionally enumerated powers. Section 2 of the Act lists 14 Congressional “findings” (or 28, depending on how you choose to count them) intended to justify this bill. All are aimed at justifying a ban on partial-birth abortion on its merits. None provide any justification whatsoever for getting the federal government involved. The closest thing to a jurisdictional hook is the throwaway language “in or affecting interstate or foreign commerce” in the operative language of Section 1531(a), a boilerplate phrase routinely used by Congress in a cheap effort to circumvent the Tenth Amendment. It is unlikely that this throwaway phrase would have saved the Gun Free Schools Act in U.S. v. Lopez, 514 U. S. 549 (1995), and in any event, it is much more perfunctory than the “mountain of data” on rape and interstate commerce that failed to sustain a federal rape law in U.S. v. Morrison, 529 U.S. 598 (2000). If there is some subtle argument that effectively distinguishes intrastate guns in schools and intrastate rape cases from intrastate abortions, I have yet to hear it.
Indeed, yesterday’s bill was almost written as though Congress thought the Lopez and Morrison cases never existed, or as though a “ha ha, just kidding” clause had been added to the Tenth Amendment in the meantime. Given the substantial overlap between advocates of federalism and opponents of partial-birth abortion, I have a difficult time accepting this as an innocent mistake. What I do see, at best, is a too-clever-by-half strategy to get the issue before the Supreme Court one way or the other, and then hope that the plaintiffs who challenge the law will conveniently “forget” to raise the Tenth Amendment at all. Given the hostility of many pro-abortion zealots toward the Tenth Amendment, this strategy might actually work.
More likely, however, some libertarian group will intervene in the case and raise the Tenth Amendment whether NARAL and NOW like it or not. Once that happens, the best proponents of the ban can hope for is that the Court will address both the substance of the law and the federalism problem, and then issue a fractured ruling that relies in part on the Tenth Amendment to strike it down. If that happens, and it becomes clear that the law would have been upheld but for the Tenth Amendment problem, the pro-abortion zealots will end up with a Pyrrhic victory, as the Supreme Court will have effectively blessed the language of the law they struck down as a “model act” that can now be enacted in every state.
October 22nd, 2003 at 10:22 am
I disagree with the 10th Amendment analysis. In Lopez the issue was a law that had little or nothing to do with interstate commerce — one could not reasonably argue that people crossed state lines in order to possess a gun near a school. The Court found that the link to Commerce (guns are sold) to be entirely too weak for a straight-up Commerce clause argument — there would be no limit ever on such power in any circumstance if it upheld on those grounds. Same for Morrison and rape — not Commerce in any normal reading of the term.
In the partial-birth case, Congress has the power to regulate medical procedures, as medicine is a commerical service that one *can* (and, for abortion, historically did) cross state lines to obtain. This may be a wider interpretation of Commerce than one would like to see, but it is not unlimited and is in line with modern interpretation.
Now, I’d have to go back and read Roe and, more importantly, Casey, but as I recall Roe allows regulation of abortion in the 3rd trimester (in fact, I think it allows prohibition in the 3rd Trimester, based on viability (which the partial-birth issue directly addresses) and regulation in the 2nd). Not sure about Casey.
Therefore, it seems to me that the Court, always assuming that it uses a principled argument, could well uphold this one.
October 22nd, 2003 at 10:35 am
That’s a distinction without a difference. Some people cross state lines to rape, too. If the possiblity that some people cross state lines in order to X were a sufficient basis for jurisdiction under the commerce clause, we might as well repeal Article I, Section 8 completely and replace it with a phrase stating “Congress shall have the power to make all laws which shall be necessary and proper to promote the general welfare.” We came painfully close to that under Wickard, but the Lopez and Morrison cases have scaled back that horrible rule somewhat.
October 22nd, 2003 at 12:49 pm
The main argument in Lopez was that “if this law stands, there are NO limits on Congress’ power.” None. The Court accepted this and said that to use the Commerce Clause there must be a connection between the regulation and actual Commerce. There is no such in rape, as rape (or dating, even) is not Commerce, and any commerical connection is purely incidental. Presumably, they could pass a federal law against rape of a prostitute, however.
Abortion is a medical procedure, almost always paid for, and calling it commerce is not a stretch of any kind, even if provided for “free”. It *is* commerce. Not “related to commerce”, not “affecting commerce”, not “utilizing emanations or penumbras of commerce.” Just simple commerce. As such, it falls squarely within the Commerce Clause, as currently interpreted.
I’m much more concerned with a Casey-style “undue burden” argument than a 10th Amendment one. The Supremes haven’t showed much interest in the 10th unless it was utterly unavoidable.
October 22nd, 2003 at 1:47 pm
Congress has a power to regulate foreign and interstate commerce. It does not have a blanket power to regulate “commerce” as such. While it is possible that some of the five “conservative” Justices will accept this hair-splitting distinction, I doubt that all of them will. And the ones most likely to accept the “all commerce is interstate commerce” arguments are also the ones most likely to rule against the statute on substantive grounds. This makes a fractured ruling all the more likely.
October 22nd, 2003 at 2:23 pm
Xrlq,
I appreciate your adherence to the text of the Constitution, and I think that this is indeed a topic worthy of discussion.
I am no expert on the Commerce Clause, and it sounds to me like you have followed that issue much more closely. Your analysis (which seems plausible on its face) is just another reason that the statute will likely be struck down.
I do remember being stunned in law school to learn that Congress has the right to tell farmers not to grow more wheat than the federal government said to. (I think this is the Wickard case that you mention in the comments.) I remember thinking that this decision marked the death of any arguments on the limitations of Congress’s power under the Commerce Clause. But, as you say, a couple of cases have since cut back on that power somewhat in the meantime.
I think for now I will leave this particular issue in the capable hands of people like yourself, who a) have studied it more and b) don’t have to worry about exceeding their stupid Blog*Spot monthly 100K quota.
October 22nd, 2003 at 2:26 pm
And here I thought that the “all commerce is interstate commerce” argument was over sometime in the 1930′s (or at least by the 1960′s) — like why California-grown marijuana can’t be used for medical purposes in California.
Note I DO NOT advocate this interpretation, I just didn’t think there was a great deal of controversy left in it among the current judiciary.
October 22nd, 2003 at 3:38 pm
I don’t think the Supreme Court has ever ruled generally that intrastate commerce equals interstate commerce. What it has done is to rule that Congress may regulate both commercial and noncommerical activities that can be shown, in the aggregate, to have a substantial impact on interstate commerce. In Wickard, the challenged activity – growing wheat in excess of federal quotas for private use – was noncommercial. It was nevertheless held to affect interstate commerce, however, as it would have freed up the farmer to sell more wheat (i.e., the full amount of the quota, rather than the full amount of the quota less his own personal share) on the national market. Conversely, the laws challenged in Lopez and Morrison were not struck down simply because guns in school and rapes were noncommercial activities; the laws were struck down becuase these activities were not shown to have a significant impact on interstate commerce. [Note that they may well have had a measurable impact on local commerce, however.]
So if the new law is challenged on Tenth Amendment grounds, the test would be something like this: do late term abortions affect interstate commerce in a way that rape and guns in school do not?
As to medical marijuana, the Supreme Court has recently ruled – unanimously – that Congress did not intend to carve out a medical exception to the federal statute generally prohibiting marijuana. The Court did not rule on the constitutionality of that statute, however. In fact, it expressly stated that the court was not ruling on the Tenth Amendment issue, as that issue was not addressed in the lower courts.
That said, I can think of a theory that might constitutionalize a federal ban on marijuana (with or without a medical exception), yet which still would not support the partial birth abortion ban. Marijuana is a good, which, as a practical matter, cannot be legalized in one state without having a huge impact on the black market in the rest of the country. This is not the case for services like abortion, prostitution, physician assisted suicide, etc., which can be offered in some jurisdictions but remain unavailable in others.
October 23rd, 2003 at 12:42 am
I would also find it ironic for the Supreme Court, which federalized abortion law 30 years ago, to now cite state’s rights.
October 23rd, 2003 at 12:49 am
By the way, can you point to a modern precedent where a regulation of commerical activity was struck down because it did not significantly affect interstate commerce? Near as I can tell, the presumption that they are always interconnected is strong.
And perversely, I see that the attempt to prevent STATE regulation of interstate commerce (via state court class-actions) has failed again.
October 23rd, 2003 at 12:54 am
What the court held in Morrison was that intrastate economic activity that, in the aggregate, substantially affects interstate commerce was within the power of Congress to control. Intrastate, noneconomic activity is different; the court “reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The key question is whether the conduct is economic or noneconomic. It’s not entirely clear to me (based on a quick skimming of Morrison) what makes an activity economic or noneconomic, but as Kevin Murphy points out in one of his posts, “Abortion is a medical procedure, almost always paid for, and calling it commerce is not a stretch of any kind.” One could argue that, because of the privacy considerations recognized as inherent in abortion, its nature as a medical problem and the moral implications, that it is better categorized as a noneconomic activity, but I don’t know if that will fly. In fact, this might be a good case for the Court to explain what is economic and what is noneconomic, since the distinction is critical to modern Commerce Clause analysis. But if it is economic, then the aggregate effects probably do affect interstate commerce, at least by the standards of Wickard.
October 23rd, 2003 at 2:13 pm
I think you may be reading too much into the economic/noneconomic distinction. The Court certainly made an issue of that due to the noneconomic nature of rape, but the rule it was applying was that “Congress’ [sic] commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce.”
I’m also not convinced that an abortion is an intrinsictly “economic” activity, any more than murder is just because some people pay a hit man to do the dirty work for them. Unless the federal statute is interpreted to contain a loophole allowing partial birth abortions that are provided gratuitously, I think that partial birth abortions belong in the same camp as total birth abortions. As to the constitutionality of federalizing murder, see the last paragraph of Section I of the majority opinion:
October 23rd, 2003 at 11:57 pm
As I read it, the key segment of Morrison is the following (forgive the long quote):
Both petitioners and Justice Souter’s dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e.g., id., at 551 (“The Act [does not] regulat[e] a commercial activity”), 560 (“Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not”), 561 (“Section 922(q) is not an essential part of a larger regulation of economic activity”), 566 (“Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress’ authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender `legal uncertainty’ “), 567 (“The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce”); see also id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of commercial regulation” and that Congress may “regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy”), 577 (“Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur”), 580 (“[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far” (citation omitted)). Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. See id., at 559-560.
I think, reading that paragraph, that the economic/noneconomic distinction (or, if one prefers, commercial/noncommercial) remains the key. To use your example, I think that Congress can pass laws against murder for hire by calling it a commercial transaction which, in the aggregate, substantially affects interstate commerce, i.e. tourism. There are a few problems with providing a definitive answer, though. (1) There aren’t many Commerce Clause cases from the modern Supreme Court (Lopez and Morrison, unless I’m forgetting something) and we don’t have a settled body of law to apply; (2) the court doesn’t provide a clear definition of what is economic conduct and what is noneconomic conduct; and (3) the test applied to noneconomic activity seems murky to me. Wickard looks like it is still good law for economic activity, and I read Wickard to mean that Congress can pretty much regulate any economic activity it wants to.
October 24th, 2003 at 12:16 am
You’re right that there isn’t a big body of modern law – just those two cases. I’m not convinced that Wickard is good law anymore – Lopez and Morrison suggest it may not be – but even if it is, remember that the activity challenged in Wickard was noncommercial in nature.
Assume you are right about the constitutionality of a federal law on murder for hire. At best, that means Congress can also ban partial birth abortion for hire. It doesn’t mean it can ban partial birth abortion generally, any more than it means it can ban murder generally.
October 24th, 2003 at 1:58 pm
Xrlq,
I just posted a reply to your post at dailypundit. I don’t understand 10th ammendment issues very well, but it is clear that the PBA ban is unconstitutional on the grounds that you mentioned.
Jacob Sullum at ReasonOnline says the same thing, talking about the similarity between the bans on assault weapons and partial ban abortions:
October 22nd, 2003 at 6:11 pm
Non-Issue
Partial Birth Abortion ban passes. Partial birth. THEY MADE IT…
October 22nd, 2003 at 7:34 pm
Who Gave Congress the Right to Ban Partial Birth Abortions?
XRLQ’s analysis of constitutionality of the so-called partial-birth abortion ban recently passed by Congress is right on
October 23rd, 2003 at 6:49 pm
The 10th amendment and the partial birth abortion ban
I guess I should preface this post by saying I’m reluctantly pro-choice. At the following post by XRLQ there is a discussion going on about the constitutionality of the partial birth abortion ban. I don’t think the legislation will be upheld in the cou…
November 22nd, 2003 at 12:05 am
Submitted for Your Approval
First off…  any spambots reading this should immediately go here, here, here, and here.  Die spambots, die!  And now…  here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council links:Casting …
December 17th, 2003 at 7:01 pm
TASTES GREAT AND LESS FILLING
Finally, a partial birth abortion ban we can all agree on: the one from the great state of Ohio. The Sixth Circuit has just held that it does not violate Stenberg v. Carhart, the way the federal ban probably does…
December 17th, 2003 at 7:03 pm
TASTES GREAT AND LESS FILLING
Finally, a partial birth abortion ban we can all agree on: the one from the great state of Ohio. The Sixth Circuit has just held that it does not violate Stenberg v. Carhart, the way the federal ban probably does…