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Federalism and Abortion After Raich:

While I agree with Ilya that Gonzales v. Raich re-expanded the scope of the federal Commerce Clause power (as I argued here), I do not believe that it "gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit." Specifically, I believe that some potentially meaningful limitations on Congress' use of the Commerce Clause power remain that could, as a practical matter, prevent extensive federal regulation or prohibition of abortion.

A key element of the Court's holding in Raich was that the prohibition on the possession of medical marijuana was an essential part of a broader, comprehensive regulatory scheme governing the distribution and production of marijuana. To maintain this scheme, the Court held, Congress could reach all possess of marijuana, for whatever purpose. For this conclusion, the Court explicitly relied upon Wickard v. Filburn, in which the Court upheld the regulation of wheat production not intended for sale as a necessary component of a broader effort to regulate agriculture markets.

While the Court adopted an expansive understanding of "economic" activity subject to the the commerce power in Raich, it did not hold that Congress could independently regulate non-economic activities that do not, in themselves, have a substantial effect on interstate commerce. Nor did the Court suggest that a stand-alone federal prohibition on medical marijuana possession would be constitutional. To the contrary, it repeatedly noted that Congress could regulate medical marijuana possession because Congress believed such regulation was necessary to control and limit illegal drug markets.

For these reasons, I accept the proposition that Raich supports the regulation or prohibition of abortion as part of a broader, comprehensive federal regulatory scheme governing certain medical procedures, particularly insofar as such a scheme were focused on regulating the the market for medical services. In my view, however, Raich would not support the constitutionality of legislation that solely limits or prohibits specific medical procedures. Why does this matter? Because, as a practical matter, it might be easier for Congress to pass specific legislation targeting a specific procedure than to pass a broader regulatory regime of which a given abortion regulation or prohibition is a part. The need for Congress to regulate more broadly in order to regulate at all might serve to limit the likelihood of regulation.

I am also aware that this rule could have the perverse effect of inducing Congress regulate more in order to reach a given target of regulation. In some contexts, I believe this is a serious threat. In the case of abortion, however, I think that this rule would most likely serve to make federal regulation less likely. One reason for this is that in the abortion context it is far easier to produce an effective legislative majority on narrow questions -- e.g., prohibiting "partial-birth" abortion, etc. -- than on abortion policy more broadly.

What about the current federal partial-birth abortion ban? Is that law constitutional? In my view, the current law, as enacted, would survive Commerce Clause scrutiny, but not because the regulation of this procedure, as such, is within the scope of the Commerce Clause after Raich. Rather, I believe the current law would pass muster because it contains a jurisdictional element. By its express terms, the law only applies when a partial birth abortion is performed "in or affecting interstate or foreign commerce." This is not -- and should not -- be a meaningless limitation on the assertion of federal power. Rather, it should be taken to limit the act to cover only those instances of the activity that would, in themselves, substantially affect interstate commerce, and thus lie within the scope of the Commerce Clause power, leaving some instances of the procedure outside the scope of the federal prohibition.

The Court has taken precisely this approach before, and not so long ago. In Jones v. United States, for example, a unanimous Supreme Court construed the jurisdictional element in the federal arson statute quite narrowly to avoid a construction that was potentially problematic. I see no reason why the Court would not apply a similar approach to the federal partial birth abortion act were it presented with this argument in an appropriate case. The result would be a federal partial birth abortion ban that would be less than a complete, nationwide ban on this controversial procedure. Similarly, were Congress to attempt to prohibit other abortion procedures with statutes containing jurisdictional elements, these statutes would be so limited as well.

Of course, courts would not even need to consider these questions if so many Republicans were not fair weather federalists. As I've argued for years, members of Congress should consider for themselves whether given legislation offends the principles of federalism embodied in the Constitution, and not simply whether a given enactment will pass muster with a majority of the current Court.

Oren (mail):

members of Congress should consider for themselves whether given legislation offends the principles of federalism embodied in the Constitution, and not simply whether a given enactment will pass muster with a majority of the current Court.


Surely you jest!
10.29.2007 1:54am
Jonathan H. Adler (mail) (www):
Oren --

I said they should. I am under no illusion that many do.

JHA
10.29.2007 1:57am
Brian K (mail):
Once a constitutional right to abortion is removed (regardless of means), would congress be able to define a fetus as a person then outlaw abortion as homocide? wouldn't this let them get around the jurisdictional issue? or is there some constitutional clause or something that i don't know about that limits congress' power to do this?
10.29.2007 2:06am
Oren (mail):
Ok, somewhat more seriously, it is not the role of Congress to decide what the limits of federalism are. Congress ought to do the people's business and let the Court sort out was is and is not constitutional. If the people demand that unconstitutional laws be passed, I cannot see why Congress, as an institution, should not bow to the clearly expressed will of the people.

No sane person would design a system of government in which any agent was responsible for enforcing the limits of its own power.
10.29.2007 2:08am
ReaderY:
The Food, Drug and Cosmetic Act prohibits marketing a drug which is unsafe to "human" life -- nothing said about whether it's unsafe only for persons. Is this not a classic example of a comprehensive act? It was understood to prohibit interstate commerce in abortifacients right up to Roe v. Wade. Why wouldn't it afterwards?
10.29.2007 2:15am
jsalvati (mail) (www):
Oren has a good point. The original mechanism for maintaining federalism was the indirect election of Senators by state legislatures.
10.29.2007 2:22am
Ilya Somin:
No sane person would design a system of government in which any agent was responsible for enforcing the limits of its own power.

That would be true of the agent were the SOLE party responsible for enforcing those limits. But there is nothing insane about allowing it to impose tighter limits on its authority than an external watchdog (e.g. - the Supreme Court) requires.
10.29.2007 2:36am
logicnazi aka TruePath (mail) (www):
I don't buy your distinction and I can repeat exactly the same arguments used in Raich.

In Raich congress wished to regulate controlled substances affecting interstate commerce but because the presence or absence of drugs in one state affects the overall US market it was deemed wholly intrastate use of this substance falls into the regulatory scheme.

Well once any state outlawed abortion it would create a black market in abortion. The existence of legal abortions in neighboring states would affect the prices of these illegal abortions just as the legal pot in Raich was argued to do.

---

But alright suppose you don't believe that argument. So congress, just as it has done with drugs, decides to outlaw implements whose primary purpose is enabling abortion and the training of doctors in it's practice. These tools, drugs and medical training are exactly like the legal pot in Raich. Any legal use entierly inside a single state presents the possibility for diversion and affects the price of these items. Hell, just requiring that none of these implements ever cross state lines would be enough to make abortions MUCH more difficult.

Besides once congress outlaws surgical implements used in abortion (well at least those affecting interstate congress) it can now trivially bootstrap to outlawing abortion itself because the provision of even intrastate abortions now affects the interstate market in these items.

---

Importantly in Raich the court didn't second guess the obviously false notion that congress's motive for reaching into intrastate events was motivated by a desire to really control only the interstate part of the activity. Pretty clearly congress's intent was to outlaw certain substances using whatever tools it had. That is it doesn't seem to matter in Raich that congress has 'impermissible' intent.

Thus to show that abortion is safe under Raich requires that you show that no matter how clever congress gets it can't think up any interstate market that would let it bootstrap to the activity it wants to regulate.
10.29.2007 3:05am
American Psikhushka (mail) (www):
Oren-

No sane person would design a system of government in which any agent was responsible for enforcing the limits of its own power.

This threw me too. What about discretion? Responsibility? Not wasting the taxpayer's (and government's) time and money? "The people" sometimes want things to be done that might by some dubious stretch be Constitutional but also might be immoral, dishonest, wasteful, unfair, sexist, discriminatory, racist, un-american, stifling, etc. I thought we elected politicians because they were supposed to have at least some modicum of judgement, the age limits for the various offices also seem to support this. Doesn't that imply that they're supposed to exercise that judgement?
10.29.2007 3:13am
Thoughtful (mail):
"No sane person would design a system of government in which any agent was responsible for enforcing the limits of its own power. "

No. No sane person would design a system of govenment in which any agent was SOLELY responsible for enforcing the limits of its own power. So the Supreme Court appropriately ought to zealously guard the people from unconstitutional encroachment by acts of the legislature. However, the Congressmen also swear to uphold the Constitution. It should follow from that that they would be derelect in their duties if they sought to pass laws they themselves believed were unconstitutional. (This analysis assumes, of course, that public choice theory does not exist, and that congressmen are not simply successful thugs who won what HL Mencken called an advance auction on stolen goods...)
10.29.2007 3:54am
M. Gross (mail):
I'm still of the opinion that Wickard v. Filburn is the single most catastrophically wrongly-decided case that still stands today.

One expects to find the opinion of that case under the dictionary definition for "stretched."
10.29.2007 10:37am
loki13 (mail):
You say Wickard . . .

I'll raise you Hans and Cruikshank . . .

And so it goes. I've heard a very good argument that the whole commerce clause debate is misplaced. Marshall made the mistake of vesting Congress's power in the commerce clause by the N&P instead of just in the N&P (in other words, specific examples of a broad authority as opposed to delineations of the narrow authority), thereby allowing people downstream (1870s+) to construe it narrowly.

YMMV.
10.29.2007 10:46am
PLR:
One could also say that no sane person would empower a government to decide when and under what circumstances it will waive its own sovereign immunity. And yet...
10.29.2007 1:09pm
loki13 (mail):
*shrug*

Putting on my Scalia/Thomas hat for a moment, if the writers of the 11th Am. wanted to enshrine sovereign immunity, why didn't they just write that in? Instead, there is a clear textural justification for eliminating diversity jx against states by citizens of another state (the, um, text), a clear 'four corners' justification for eliminating diversity jx against states by citizens of another state (parallel to Art. III) and a clear legislative history/intent (overrule Chisholm).

Everything else is just a penumbra from the overall structure of the Constitution and an emanation from the 10th.

If you want a general provision for state sovereignty, pass an amendment. The 11th isn't it. Damn activist judiciary.
10.29.2007 1:20pm
Oren (mail):
Ilya &AP - I just can't imagine placing any faith (or hope) in Congress ability or desire to limit its own power. It's just not in the job description.
10.29.2007 10:14pm
Garrett Johnson (mail):
Prof. Adler,

In my student law journal note, The Commerce Clause challenge to the Safe Drinking Water Act, 10 Quinnipiac Health L.J. 77-112 (2006), I basically made the point that you do, that the Court has never held that Congress has the power to regulate non-economic activity that is not a part of a larger scheme of economic regulation.

You raise the interesting question of a stand-alone ban of a certain type of medical procedure, unconnected to a larger regulatory scheme. You say that such a ban is not an economic regulation, but I would have trouble distinguishing a federal ban on a certain type of abortion procedure from a federal ban on a drug like marijuana.

While marijuana is covered under the larger regulatory structure of the CSA, it seems to me as though an independent ban on marijuana, outside of the CSA would still be held to be a valid use of the commerce clause power. The federal regulation of a particular market seems to be the controlling factor here, and banning certain types of medical procedures seems no different than banning certain types of drugs.
10.30.2007 1:57pm
AK (mail):
None of the parties in the Raich caption briefed or argued the Commerce Clause issue.

I don't see why the Court should decide a case on grounds that none of the parties have touched with a ten foot lawyer-pole. And I don't see why we should interpret a Court's decision as reaching an issue that it didn't reach.
11.1.2007 1:02pm
Smaack (mail):

For these reasons, I accept the proposition that Raich supports the regulation or prohibition of abortion as part of a broader, comprehensive federal regulatory scheme governing certain medical procedures, particularly insofar as such a scheme were focused on regulating the the market for medical services. In my view, however, Raich would not support the constitutionality of legislation that solely limits or prohibits specific medical procedures. Why does this matter? Because, as a practical matter, it might be easier for Congress to pass specific legislation targeting a specific procedure than to pass a broader regulatory regime of which a given abortion regulation or prohibition is a part. The need for Congress to regulate more broadly in order to regulate at all might serve to limit the likelihood of regulation.


Does this suggest that the creation of a national health care plan as all the leading Democrat presidential candidates seem to advocate opens the door to comprehensive regulation of abortion?
11.1.2007 1:43pm