Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.