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Abortion, Federalism, and Presidential Elections:

Jonathan Adler is right to suggest that George Will too readily concludes that presidential candidates' positions on abortion should be largely irrelevant to voters. Will claims that a Supreme Court decision overruling Roe v. Wade would restore "moral federalism," a system under which each state could adopt its own preferred policy on abortion. Thus, prochoice voters living in states with prochoice majorities have nothing to worry about (at least so far as their own states are concerned).

I wish that were true. But under the Supreme Court's recent federalism jurisprudence it simply isn't. The Supreme Court's 2005 decision in Gonzales v. Raich held that Congress can regulate any activity with even the slightest, extremely tenuous connection to "commerce." For the detailed explanation why, see my article on Raich. I also explained how Raich gives Congress the power to regulate abortion in this November 2006 post.

In my view, Raich is a severely flawed interpretation of Congress' Article I power to regulate "commerce among . . . the several states." Nonetheless, six Supreme Court justices signed on to it, and all six are still on the Court. Thus, if Roe v. Wade were overruled, current Supreme Court federalism doctrine gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit. Sadly, Will's "moral federalism" has been rejected by the Court and is unlikely to be embraced by Congress of its own accord. Witness their 2003 law banning partial birth abortions, which the Supreme Court recently upheld in Gonzales v. Carhart.

So long as Congress is controlled by the Democrats, it is unlikely that any more federal laws restricting abortion will be enacted. However, the Democratic majority in Congress is narrow and it is not impossible that they will lose it sometime in the next few years. Thus, presidential candidates' positions on abortion are potentially much more important then Will suggests.

George Weiss (mail):
of course..the actual likelihood of the decsion being overturned is so small....
10.28.2007 5:40pm
Logicman (mail):
Ilya,

Isn't a less alarmist reading of Raich that it's a classic field preemption case? There is no coherent argument that Congress has occupied the field with respect to abortion.
10.28.2007 6:18pm
Ilya Somin:
Isn't a less alarmist reading of Raich that it's a classic field preemption case? There is no coherent argument that Congress has occupied the field with respect to abortion.

It may be less alarmist, but unfortunately it's not correct. Raich has nothing to do with preemption. It is not a case about preemption at all, but a case about the constitutional reach of congressional power, which the Court held is virtually infinite. Preemption cases, unlike Raich, merely raise the issue of how much of its power Congress has chosen to exercise rather than how much power it has.
10.28.2007 6:50pm
Ilya Somin:
of course..the actual likelihood of the decsion being overturned is so small....

It's not all that small. Right now there are probably 4 votes on the Court to overturn Roe. If 88 year old Justice Stevens retires and is replaced by an anti-Roe justice, it could well be overturned. That is unlikely unless a Republican president is elected in 2008 (which itself is not the most likely outcome of the election). But if the Republicans do win, it could occur.
10.28.2007 6:52pm
Logicman (mail):
Preemption cases, unlike Raich, merely raise the issue of how much of its power Congress has chosen to exercise rather than how much power it has.

But the question of how much it has was not decided in Raich, it was decided in Wickard. All Raich decided was that the Controlled Substances Act had a long history and that the Federal government has been regulating drugs for a long time, i.e., the field was occupied. Hence, the long discussion of history in Stevens' opinion and Scalia's vote, which was stare decisis based.
10.28.2007 7:42pm
Milhouse (www):
Any court that overturns Roe is likely to overturn Raich as well. Maybe even Wickard, if we're lucky.
10.28.2007 7:45pm
MarkField (mail):
I think this debate is overlooking an important aspect of the most strident opposition to Roe. Those who believe life begins at conception do not, ultimately, want each state to decide for itself. That would, after all, leave abortion legal in many states. What they want, and what the logic of their position demands, is a national bar on abortion. Period. Now, whether that happens because Congress makes it so under its CC power or because the SCOTUS rules that way under some theory of the Constitution or because there's a Constitutional amendment won't matter to such opponents. But there's no point in pretending that they really believe it's a local issue. To them, it's a national one.
10.28.2007 7:46pm
Nessuno:
The fact still remains that even if Roe were to be overturned, abortion would not be illegal in this country, a fact that most people don't understand. Based on media hysterics, misinformation campaigns, and a general ignorance of civics, most people think if Roe is overturned abortion will be illegal.

I think that was Will's larger point.

But even get into the specifics, I still disagree with Ilya's characterization that a ban could be a looming possibility. Given a Republican presidential win, given a suitable SC appointment, given a Republican capture of the House and Senate, would-be banners would still need 60 votes in the Senate, a scenario that just will not occur in my lifetime.

Republicans surely will get 60 votes sometime in the future, but not all Republicans (especially Senators) are pro-life, and not all pro-lifers would be in favor of the same types of general bans, and not all banners would be in favor of an anti-federalism, Congressional approach the the situation (think of Fred Thompson's position).

So, this takes us back to Will's federalism point. If you are truly worried about abortion being illegal where you live, the biggest threat to that (in the event of Roe being overturned) will come in certain states.
10.28.2007 7:48pm
rlb:
I've always thought that legalized abortion is most blatant denial of equal protection of the laws in the history of this country. Would anyone stand for a state with homicide laws that made it legal to kill black people, women, or the elderly?

You have to admit that it's remarkable that the 14th amendment's clear grant of power to Congress would be laughed out of court, but the same law would be sustained as "regulating commerce among the states." 'Course, I've read Raich and Wickard, and I've always wondered why they rely on the interstate commerce clause-- wouldn't the same arguments work just as well when applied to "regulating" foreign commerce?
10.28.2007 8:03pm
Ilya Somin:
I still disagree with Ilya's characterization that a ban could be a looming possibility.

An outright ban may not happen if Roe is overruled. But further federal restrictions on abortion short of a complete ban certainly could.
10.28.2007 8:15pm
Ilya Somin:
Any court that overturns Roe is likely to overturn Raich as well.

Possibly, but I'm not so sure. Only one more vote is needed to overrule Roe, while we would need at least 2 to overrule Raich (3 if it turns out that C.J. Roberts agrees with Raich). And not every justice who is eager to overrule Roe will also be willing to overrule Raich - as the example of Justice Scalia shows.
10.28.2007 8:17pm
Milhouse (www):
I think if there were 4 other votes to overturn both Raich and Wickard, Scalia would vote that way too. I suspect that if he had been the swing vote in Raich he would have swung the other way too. But he wasn't going to be joining a dissent for Raich while Wickard stood.
10.28.2007 8:24pm
Ilya Somin:
I think if there were 4 other votes to overturn both Raich and Wickard, Scalia would vote that way too. I suspect that if he had been the swing vote in Raich he would have swung the other way too. But he wasn't going to be joining a dissent for Raich while Wickard stood.

I don't think there is much evidence to support this. Scalia made very clear in his concurring opinion in Raich that he supports both Raich and Wickard. In Lopez and Morrison, he refused to join J. Thomas' concurring opinions that raised questions about Wickard's validity.

It is, I suppose, theoretically possible that Scalia's published opinions don't represent his true views in this area and that he secretly yearns to overrule Raich and Wickard. But that would be extremely unlike Scalia, who is usually very forceful in expressing his views and rarely if ever hides the ball.
10.28.2007 8:33pm
pireader (mail):
Interesting that nobody has mentioned an outcome that's at least as likely as those discussed above. That is, the Court overturns Roe somehow; and a Democratic-majority Congress responds with a national "right to choose" law.

Today, any such proposal would get filibustered in the Senate--likely successfully. But if the Democrats capture the White House and increase their Senate majority in 2008, they might well find enough votes to force cloture.

Then the debate over abortion would shift markedly--away from adispute over activist judges and (one presumes) onto the ground of states' rights vs. federalism.
10.28.2007 8:49pm
T. Gracchus (mail):
The analysis supposes that a state may not criminalize leaving the state to obtain an abortion, nor performing an abortion on a citizen of the state. No idea how the Supreme Court or Congress would react to such legislation.
10.28.2007 9:01pm
Thoughtful (mail):
Isn't it true (I'm not a lawyer) that currently some states prohibit certain medical procedures on people under 18 without parental permission. If such people went to another state to have the procedure done, would T. Gracchus's concerns be on point?
10.28.2007 9:13pm
Ben P (mail):
Talking about Raich does present an interesting question.

In a hypothetical post Roe situation where a federal law substantially regulating abortion was passed, and a state passed it's own law. Assuming the federal law would be based on the commerce clause, that would be an interesting challenge. There seems to be at the very least a plausible argument from Lopez and Morrison that such a law could be restricted.

Or, alternatively, what about a national "right to choose" law, say, conditioned on state's acceptance of federal Medicaid(Medicare?) funds?

The second would also create an interesting political conundrum in pro life states, on whether enough politicians would stick to principle over risking the votes that would come against anyone who cut state medical programs.
10.28.2007 9:31pm
Duncan (mail):
I posted the following over at the Post's site:

There are so many things wrong with this column, it's hard to know where to start.

1. California voters, for some reason, don't think the world ends at the Golden State's borders. (Well, most of them don't.) Not only do they think it's a bad thing if a woman is forced to bear an unwanted child, they think it's a bad thing even if it doesn't happen in California. Thus, the inevitability that abortion will be functionally available in vast swaths of the Plains and Old Confederacy states should Roe fall strikes those folks as a concern. Sounds crazy, I know, but it's true.

2. If there was ever a good reason to think that abortion law would revert back to the states entirely upon the overturning of Roe, it died in 2003 when Congress passed a bill banning a certain type of abortion, and its death was confirmed when the courts declined to strike down the bill as a transgression of the commerce power. Abortion is now a federal issue whether or not the Supreme Court considers an abortion ban an infringement of constitutional rights, and thus it matters a great deal, for people who care about the abortion issue, who wins federal elections in California and everywhere else. California would not get to make all its own rules on abortion if Roe were overturned. (And I'm guessing Will would somehow neglect to write a column denouncing the federal Ban All Abortions Act that gets passed in 2010 and signed by President Romney.)

3. Rehnquist's vote in Dickerson was transparently opportunistic. He was on the wrong side, and the other Justices were willing to write an opinion stating that Miranda was a constitutional rule. He didn't want that to happen, so he switched sides in order to assign the opinion to himself, and he wrote an opinion that avoided saying that. He had to say something, though, so he came up with some guff about longstanding reliance on Miranda. It didn't convince anyone then, there's no reason to think anyone takes it seriously as a principle, and at any rate the Roe situation isn't even vaguely analogous to a police procedure. There's no reason to think a conservative Justice would decline to overrule Roe on that ground.

4. As other commenters have pointed out, Roe doesn't stand in isolation. Overruling it would relegate it to the ranks of constitutional mistakes (like Lochner, Plessy and Dred Scott), making it harder for future courts to recognize constitutional rights not expressly spelled out in the document. Will might think that's a good idea, but Californians are entitled to disagree.
10.28.2007 9:38pm
Dave Hardy (mail) (www):
All that would be needed would be an amendment that states, in the clearest possible language, that Congress cannot regulate the field, period. Something clear like "Congress shall make no law..."

Oops. Well, maybe "The right of the people..." uh...

"shall not be infringed ..." Dang, it's harder than it appeared to be!
10.28.2007 9:39pm
MarkField (mail):
I guess my point was too cryptic. There is no political support -- none -- for overruling Roe as an end result. That wouldn't be satisfactory to the activists on either side of the political divide. Every single bit of the political push regarding Roe comes from those who want to nationalize the issue. Any "federalism" decision by the Court will be unstable in the long run, because the people who provide the political push won't accept it. The decision will eventually be national; it's just a question of when.
10.28.2007 10:16pm
K Parker (mail):
MarkField,
Those who believe life begins at conception do not, ultimately, want each state to decide for itself.
How the heck do you know what I, or anyone else, wants?

T Gracchus,

You aren't seriously suggesting the Supreme Court would uphold state prohibitions on the free movement of (adult, non-incarcerated, non-parolee, non-declared-mentally incompetent) citizens? Or extraterritoritial reach of state laws? Seriously, now.
10.28.2007 11:06pm
Mark Bahner (www):

I've always thought that legalized abortion is most blatant denial of equal protection of the laws in the history of this country.


There is no "equal protection of the laws" clause in the Constitution for the UNborn. The 14th Amendment clearly states, "All persons BORN or naturalized in the United States..." (Emphasis added.)

Would anyone stand for a state with homicide laws that made it legal to kill black people, women, or the elderly?


I would be opposed to that. That would be an unconstitutional violation of their rights addressed by the 14th amendment.
10.28.2007 11:07pm
Siona Sthrunch (mail):
Some comments on your article on Raich:

1. On page 4, the word "commerce" should be capitalized when quoting the commerce clause, particularly as the word "States" is. Later, the quotation of the commerce clause is correct.

2. The majority expressly relied on the necessary and proper clause. See Raich at S.Ct. 2198-99, posing the issue as one for the necessary and proper clause, not the commerce clause alone. I think this should have been mentioned.

3. I think you could have discussed Thomas' brilliant and beautifully written dissent in Raich.
10.28.2007 11:09pm
rlb:
Mark, the 14th Amendment says you must be born or naturalized to be a citizen, which is very much distinct from "person[s]" who may not be denied equal protection of the laws.
10.28.2007 11:13pm
Siona Sthrunch (mail):
Also, despite those points, I think it's an excellent article. I particularly liked the analysis of Gibbons which, as you point out, is frequently misread. The comment on inspection laws was illuminating.
10.28.2007 11:21pm
MarkField (mail):

How the heck do you know what I, or anyone else, wants?


I was speaking generally, based on what I've been told by those I know who oppose abortion. I freely admit this may represent their own views and not those of their fellows, but it seems consistent with what the view should logically require.
10.28.2007 11:28pm
Mark Bahner (www):
Mark, the 14th Amendment says you must be born or naturalized to be a citizen, which is very much distinct from "person[s]" who may not be denied equal protection of the laws.


OK, but now look at the requirement for apportioning Representatives:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state,...


Have you ever heard of a census counting a pregnant woman as two "persons"? No, of course not. Because the unborn aren't "persons."
10.28.2007 11:32pm
njones:

So long as Congress is controlled by the Democrats, it is unlikely that any more federal laws restricting abortion will be enacted. However, the Democratic majority in Congress is narrow and it is not impossible that they will lose it sometime in the next few years...


Even if Congress was controlled by Republicans, there are quite a few pro-choice Republicans that it would take a substantial majority for any abortion ban to have a real chance at passage.

The so called "partial-birth" ban was something of a fluke and it only affects a very small number of total abortions. Anything more restrictive would not, IMO, have a realistic chance at passage.
10.29.2007 12:10am
rlb:
You forget that Congress has the power to direct how the census is taken (Article 1, Section 2). Why haven't unborn children been counted? I can think of a dozen or so practical reasons. None of them necessarily speak to personhood.

But it's not really relevant, because obviously Congress doesn't have the power to define who is and who isn't a person for the purposes of Constitutional protections.
10.29.2007 12:13am
Dave Hardy (mail) (www):
Have you ever heard of a census counting a pregnant woman as two "persons"? No, of course not. Because the unborn aren't "persons."

Not to get too wrapped up in a very contentious issue, but legislatures regularly protect things that are neither persons nor citizens. Animals, trees, open spaces, you name it. There are animal abuse statutes where the violation is a felony. There are federal wildlife statutes where the violaton is a felony (second offense of selling eagle feathers, as I recall).

Secondly, limiting the protection of the laws to the "born" would rather contravene Roe v. Wade's rule for the third trimester.

Third, it would be unduly restrictive, in that I have encountered some who, while having been born, have done nothing to earn that privileged status, and might be terminated retroactively with no damage to any. I will not be so crass as to name relatives or inlaws, or for that matter former clients, but I really doubt that their deletion would (if the full circumstances were proven) be such as to flunk a rational basis test.
10.29.2007 12:14am
Larry Fafarman (mail) (www):
Mark Bahner said,
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state,...

Have you ever heard of a census counting a pregnant woman as two "persons"? No, of course not. Because the unborn aren't "persons."

And have you ever heard of a census not counting Indians as persons? Your above quote mine of the 14th Amendment deleted the words, "excluding Indians not taxed." So you are saying that the 1924 act of Congress that made all Indians citizens is unconstitutional. How can all Indians be citizens when the 14th Amendment says that untaxed Indians cannot even be counted as persons for purposes of Congressional representation?

BTW, one of the worst examples of Congressional abuse of the Commerce Clause was an attempt to pass a law imposing prison sentences on bus and taxicab drivers who transport minors across state lines for the purpose of evading parental consent or notification laws concerning abortions. How could this be interstate commerce if the abortions are performed for free?
10.29.2007 1:26am
Oren (mail):

Would anyone stand for a state with homicide laws that made it legal to kill black people, women, or the elderly?


I voted for the Oregon Death with Dignity Act, for what it's worth.
10.29.2007 1:53am
John Herbison (mail):
The idea of considering fetuses, embryos and potential offspring at even earlier stages of development as persons for purposes of the census and apportionment is intriguing.

I have not researched, nor even given much thought to, which demographic groups of women are most prolific at actual conceptions, as distinct from births. I surmise intuitively, however, that the universe of women who conceive is comparatively more urban, more unmarried, lower income, blacker, browner and less well educated than the universe of women who eventually give birth.

Let's see now, which political party do states and districts which are disproportionately urban, unmarried, poor, black, brown and/or undereducated tend to prefer?
10.29.2007 2:40am
theobromophile (www):

Or, alternatively, what about a national "right to choose" law, say, conditioned on state's acceptance of federal Medicaid(Medicare?) funds?

States receive federal funding for Medicaid (which pays, IIRC, anywhere from 1/2 to 57% of the costs, depending on the economic conditions of that state).


How could this be interstate commerce if the abortions are performed for free?

The minor (or the minor's friend or relative) pays for the taxi, which makes its money by moving across state lines.



But it's not really relevant, because obviously Congress doesn't have the power to define who is and who isn't a person for the purposes of Constitutional protections.

But Congress has the power to define citizenship, albeit within certain limits (i.e. it cannot exclude those who are born here and are subject to the jurisdiction of the United States).

I'm not sure if that matters, because only "citizens" have protection under the Privileges and Immunities Clause (which was eviscerated over 100 years ago), while states must grant "persons" equal protection of the laws.

The persons v. citizens re: census debate also brings in the question of whether or not illegal immigrants can/should be counted amongst the census for the purpose of apportioning electoral votes.
10.29.2007 3:34am
T. Gracchus (mail):
In answer to Parker: there is no case law barring a state from making it a crime to leave the state to obtain goods or services (and some federal authority indirectly favoring such laws), and there are enforced laws barring importation of alcohol purchased out of state into a state which requires purchase through state stores. As state citizenship seems to be no more than residency, and some states have very large anti-choice majorities, it is not clear what obstacle there is to such an enactment. As there is nothing in the Constitution about travel or a right to renounce or change state citizenship, the current proclivity for variants of originalism would seem to support such an enactment.
10.29.2007 10:36am
Adam C (mail) (www):
Note that there has never been a pro-life majority in the Senate in recent history. Even with 55 Republican Senators before 2006, only 48 or 49 called themselves pro-life. After 2006, there are 43-45 pro-life Senators. It would take a lot of surprising results to get to a mere majority in the Senate. Of course, any major restrictions would have to pass a filibuster.

Even if Congress has the power to regulate abortion, there is little chance that any substantive limitations will come from the federal legislature in the near future (even without Roe).
10.29.2007 11:38am
James B. (mail):
The idea of considering fetuses, embryos and potential offspring at even earlier stages of development as persons for purposes of the census and apportionment is intriguing.

I surmise intuitively, however, that the universe of women who conceive is comparatively more urban, more unmarried, lower income, blacker, browner and less well educated than the universe of women who eventually give birth.

Let's see now, which political party do states and districts which are disproportionately urban, unmarried, poor, black, brown and/or undereducated tend to prefer?


Yes, but I surmise intuitively that frozen embryos at fertility clinics are more likely to be the product of women likely to be married, upper income, white and/or educated.

And while women who will end up getting abortions for the most part would count as two under a revised census definition of person, I believe fertility clinics often create multiple embryos for each couple.
10.29.2007 1:13pm
DeezRightWingNutz:

The idea of considering fetuses, embryos and potential offspring at even earlier stages of development as persons for purposes of the census and apportionment is intriguing.

I have not researched, nor even given much thought to, which demographic groups of women are most prolific at actual conceptions, as distinct from births. I surmise intuitively, however, that the universe of women who conceive is comparatively more urban, more unmarried, lower income, blacker, browner and less well educated than the universe of women who eventually give birth.

Let's see now, which political party do states and districts which are disproportionately urban, unmarried, poor, black, brown and/or undereducated tend to prefer?


I'm not sure what your point is, and I'm hesitent to guess. In any case, I'd be willing to bet that counting fetuses in the census would increase representation in Republican districts. It doesn't matter that (if?) those in Democratic districts get more abortions unless the difference is greater than the difference in births. I'd be intersted in seeing the data.

I'm guessing that:

1) Republicans have more kids, and
2) Abortions are fairly equal between Republicans and Democrats

I don't know where these fertile Republicans and aborters (of all political stripes) live.
10.29.2007 1:26pm
Mark Bahner (www):

You forget that Congress has the power to direct how the census is taken (Article 1, Section 2). Why haven't unborn children been counted? I can think of a dozen or so practical reasons. None of them necessarily speak to personhood.


Well, the Constitution demands that Congress count the "whole number" of persons. You're right that the means of the counting are left up to Congress (e.g., Congress could make everyone line up from shortest to tallest). But the Constituion demands every single "person" be counted. Since fetuses and embryos have never been counted, they clearly have never been considered "persons."

Ergo, the protections of the 14th amendment that apply to "persons" do NOT apply fetuses and embryos, because they are not "persons" under the Constitution.


But it's not really relevant, because obviously Congress doesn't have the power to define who is and who isn't a person for the purposes of Constitutional protections.


You're right that Congress doesn't have the power to define who is and isn't a person for the purposes of Constitutional protections. And fetuses and embryos are clearly not persons, for the purposes of Constitutional protections. If they were persons, the Constitution demands that they be counted in the census.

So once again, fetuses and embryos aren't "persons" under U.S. law, and have no "equal protection of the laws" right under the 14th amendment.

If you want to get them protected by the 14th amendment, you'll need to get a constitutional amendment, just like 14th amendment did for freed slaves.
10.29.2007 2:08pm
Mark Bahner (www):

I'm not sure if that matters, because only "citizens" have protection under the Privileges and Immunities Clause (which was eviscerated over 100 years ago), while states must grant "persons" equal protection of the laws.


Yes, it's correct that states must provide "persons" equal protection of the laws. But fetuses and embryos are clearly not "persons" under U.S. law. If they were "persons", the Constitution requires that they be counted in every census. Since NO census has ever counted them, they clearly have never been regarded as "persons."
10.29.2007 2:13pm
theobromophile (www):
<blockquote>
But fetuses and embryos are clearly not "persons" under U.S. law.
</blockquote>
.... aren't we in agreement about that? I wasn't aware that I needed to write a treatise, reiterating the "person" debate above, instead of merely pointing out that Congress could act to make fetuses "citizens" but has little leeway for the "persons" element of the Fourteenth Amendment.
10.29.2007 4:26pm
Mark Bahner (www):

.... aren't we in agreement about that? I wasn't aware that I needed to write a treatise, reiterating the "person" debate above,


Sorry, I post at lunchtime and am responding to multiple people. I didn't understand that you agreed with me that the people who wrote the 14th amendment didn't regard fetuses and embryos as "persons."

...instead of merely pointing out that Congress could act to make fetuses "citizens" but has little leeway for the "persons" element of the Fourteenth Amendment.


Well, you can merely point that out, but that doesn't mean I have to agree with it. ;-)

You're saying that the Congress can't make fetuses "persons," but the Congress CAN make them citizens. Well, no, I don't agree. If that were the case, Congress could make dogs and cats (and trees and rocks) "citizens."

Entities must be "persons" before they can be "citizens." As has been pointed out, the protections afforded to "persons" are even more basic than the "privileges and immunities" afforded to citizens.

So again, I maintain that a Constitutional amendment would be required to make fetuses (and embryos?) "persons," before they would have any rights protected by the Constitution.
10.29.2007 11:49pm