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More on Raich, Federalism, and Abortion:

It appears that co-blogger Jonathan Adler and I have a slight disagreement over the degree to which the Supreme Court's decision in Gonzales v. Raich allows Congress to use its Commerce Clause powers to regulate "commerce . . . among the several states" to regulate or ban abortion. Despite Jonathan's thoughtful comments, I continue to believe that, post-Raich, Congress has the power to regulate or forbid abortion in virtually any way it sees fit - at least in so far as as federalism concerns are at issue. Obviously, there will still be individual rights constraints on abortion regulation for as long as Roe v. Wade remains in force.

Jonathan correctly points out that Raich (like previous decisions), gives Congress the power to regulate anything that might be considered "economic activity" and also any noneconomic activity that is part of a "broader regulatory scheme" that incorporates economic activity.

However, both of these categories of congressional power under Raich are even broader than Jonathan supposes. Not only did the Court allow Congress the power to regulate anything that counts as "economic activity," it also defined "economic" to include any activity that involves the "production, distribution, and consumption of commodities." That definition is broad enough to include virtually any abortion because all abortions involve the consumption of medical supplies that surely count as "commodities." Moreover, abortion itself could be considered a "commodity" under Raich, since it is a service usually provided by professionals who work for pay (unlike the marijuana in Raich, which was grown by volunteers working for free). The "economic activity" test would not only be enough to uphold regulations banning or restricting all abortions, but also those that ban or restrict a specific abortion procedure. After all, such procedures also use medical supplies and are also often provided through market transactions involving paid professionals.

But even if there is some small subset of abortions that don't count as "economic activity" under Raich (e.g. - the abortion is performed for free by a doctor who doesn't use any perishable medical supplies in the process), it could probably still be regulated or banned by Congress as part of a "broader regulatory scheme." In this regard, it is important to recognize that Raich significantly watered down the standards for including noneconomic activity in a broader regulatory scheme relative to the Court's previous decisions in United States v. Lopez (1995) and United States v. Morrison (2000). While these earlier cases suggested that noneconomic activity can only be swept into a broader regulatory scheme if its inclusion is "essential," Raich holds that the it is enough for Congress to have a "rational basis" for believing that its inclusion is desirable. As constitutional law mavens know, the "rational basis" test in this context is a virtual blank check for Congress to do as it pleases. It need not even come up with the needed "rational basis" ahead of time, but can rely on government lawyers or judges to invent one after the fact.

Under this permissive standard, it would be very easy for Congress to link any abortion restrictions it chose to enact to a "broader regulatory scheme." For example, it could tie the restrictions to preexisting medical safety regulations, to laws regulating the distribution of medical supplies, and so forth. Jonathan supposes that the need to tie abortion regulation to a broader regulatory scheme might seriously inhibit Congress because "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." This however, assumes that narrowly targeted abortion regulations could only be enacted as part of a new broader regulatory scheme. In reality, they could simply be linked to preexisting federal laws regulating medical safety or related issues. Under the rational basis test, it would be simple for Congress to find a connection between the new regulation and the old ones close enough to pass judicial scrutiny.

For a more detailed discussion these aspects of Raich, see my article on the case. Ironically, Jonathan himself also wrote an article on Raich, where he explained why that case essentially wipes out the possibility of judicially enforced restrictions on Congress' powers under the Commerce Clause. Jonathan has every right to change his mind about Raich. But, so far, I find his excellent earlier article more persuasive than his recent blog post.

Finally, I agree with Jonathan that Congress should exercise restraint and forego unconstitutional legislation even in cases where the Court is willing to permit it. But I have very little confidence that either political party will actually do that. There is ample evidence to suggest that both Democrats and Republicans are willing to enact legislation of dubious constitutionality when it suits their political purposes to do so.

theobromophile (www):
Presumably, then, a creative Congress could be able to use its power under Raich to prohibit states from restricting abortion, should Roe be overturned. (The creativity would be in structuring the prohibition - perhaps contingent upon receipt of federal funds, or a requirement that items which have traveled in ISC not be used to prosecute or incarcerate abortionists.)
10.29.2007 3:13am
logicnazi aka TruePath (mail) (www):
Actually your argument is even stronger than that.

Suppose Congress steps in to create a regulatory scheme banning these drugs used in abortion (just the same way they did for other drugs in Raich). Now further suppose at least one state outlaws abortions AND outlaws drugs used to provide abortions. Certainly there will be at least some people smuggling these drugs into the state creating an interstate black market in the banned drugs.

Now congress get's to trivially bootstrap to banning all abortions. It just observes that the presence or abscence of abortions in other states affects the demand/price in the black market for these abortion drugs. Now it gets to ban all abortions because of their affect on the black market for abortion drugs.

Besides people driving from one state to another to get an abortion is surely interstate commerce. Thus if congress can show that some people are (perhaps illegally) driving to other states to get abortions it once again it can justify a full ban.
10.29.2007 3:17am
zooba:
Or you could admit the truth, which is that any case striking down national abortion laws on commerce clause grounds would go to the Supreme Court. Once at the Supreme Court, the least likely way to predict the result would be trying to examine commerce clause precedent. Let's face it, when it comes to cases like that, precedent is a thin facade over the real reasons. Who would be shocked in such a case if the liberals on the court would suddenly swing right on commerce clause jurisprudence and Scalia would pull a Raich and swing left again. The only real mysteries here are Kennedy and Thomas.
10.29.2007 3:26am
theobromophile (www):
TruePath,

Wouldn't it be simpler for Congress to simply ban RU-486 (or any drug used as an aborficant), or have the FDA rescind its approval, and, further, prohibit the use of various drugs in abortion procedures? The FDA also has to approve medical devices; Congress could just ban abortion-specific devices, or the use of those devices for abortions. Usually, women have some sort of anaesthetic, and some "drugs" (seaweed sticks, IIRC) are used to expand the cervix.

So many areas for regulation, so little time.
10.29.2007 3:39am
Ilya Somin:
Or you could admit the truth, which is that any case striking down national abortion laws on commerce clause grounds would go to the Supreme Court. Once at the Supreme Court, the least likely way to predict the result would be trying to examine commerce clause precedent.

Possibly. But a lower court decision upholding such a law (far more likely than the reverse, after Raich) would probably NOT go to the Supremes and therefore would stand. Raich's impact is important not because it will constrain the Supreme Court itself but because it establishes rules that lower courts must follow unless and until the Supremes change their position (which may not be for many years, if ever).
10.29.2007 4:10am
K Parker (mail):
Besides people driving from one state to another to get an abortion is surely interstate commerce.
Surely not! An abortion ought to be one of the harder things to actually do under any sane reading of interstate commerce. The chances of the mother being in one state, and the abortionist in the other, are pretty slim, aren't they?
10.29.2007 4:37am
lawclerk3000:
I think it is interesting to note that in Thomas's concurring opinion in Carhart, which Scalia joined, he noted that the constitutionality of the partial birth abortion ban under the Commerce Clause was not before them it that case. So Scalia is at least keeping his options open should Roe be overturned. It is highly unlikely that Thomas thinks that the Federal Government has this power under the Commerce Clause.
10.29.2007 9:29am
Eli Rabett (www):
Are you implying that post Roe repeal, Congress will regulate coathangers?
10.29.2007 12:35pm
AF:
I agree with Ilya. United States v. Jones notwithstanding, the jurisdictional element will not limit the reach partial birth abortion ban. From a doctrinal perspective, abortion, unlike living in a residential home as in Jones, is an "economic activity," so all abortions are in or affecting commerce. From a realist perspective, it is hard to see how the ban could be limited at all without being limited virtually out of existence (how are some abortions more economic than others after Raich?), and inconceivable that the current Supreme Court would do so.
10.29.2007 12:56pm
Oren (mail):

Raich's impact is important not because it will constrain the Supreme Court itself but because it establishes rules that lower courts must follow unless and until the Supremes change their position.


A lower court could certainly distinguish Raich and strike down the law under US v. Morrison (529 U.S. 598), essentially forcing the Supremes to clarify their commerce clause jurisprudence.
10.29.2007 12:58pm
Ilya Somin:
A lower court could certainly distinguish Raich and strike down the law under US v. Morrison (529 U.S. 598), essentially forcing the Supremes to clarify their commerce clause jurisprudence.

It would have to ignore large portions of Raich (such as the new definition of "economic activity" and the new, ultra-lax standards for inclusion in a "broader regulatory scheme) in order to do that. So far, lower courts have almost uniformly struck down commerce clause challenges under Raich, including in fields where they were receptive to them before.
10.29.2007 1:15pm
Mike& (mail):
I don't think guys have even mentioned 18 U.S.C. 248, the Freedom of Access to Clinic Entrances Act (or FACE). Every Federal Circuit to decide the question has upheld it on this basis: "Because we find that there was a sufficient basis for the Congress to have determined that the activity proscribed by the Act, though intrastate, could have a substantial affect on the congressionally-recognized national market for abortion-related services [FACE was valid under the Commerce Clause]." United States v. Bird, 124 F.3d 667 (5th Cir. 1997).

Why does anyone think the Supreme Court would reach a different conclusion, especially after Raich?

I guess this is one of those issues where I don't understand how anyone could not think the Supreme Court would uphold Congress' efforts at banning a commercial service, viz., abortion. (Absent the right to privacy protection, naturally.)
10.29.2007 1:29pm
David M. Nieporent (www):
I'm also with Ilya. I don't see how anybody could think that the court would not find abortion to fit within the ambit of the Commerce Clause, given that it is a commercial activity, unlike rape or gun-carrying. I think the vote would be 8-1 if it were challenged on that basis. Perhaps 7-2, but Scalia's pretty faint-hearted.
10.29.2007 4:02pm
M. Simon (mail) (www):
I have a question. How can the law allow one product that performs a certain function and not allow another product that fills the same function? Isn't that restraint of trade? I'm going to put up here a lot of a post I did on the subject. Perhaps some one can give me an answer:

Suppose you have a machine that depends for its proper operation on wooden pegs in wooden holes. Say that it has been traditional, if wooden pegs were not available, that brass pegs were an accepted substitute. Now suppose the government outlawed the use of brass pegs and decreed that if you didn't have wooden pegs only gold pegs were acceptable. Would that be right?

What am I getting at? Brain chemistry.

The holes are receptors. The wooden pegs are the body's naturally made receptor fillers. The brass pegs are substances you imbibe (in one way or another) to make up for a lack in the bodies' natural chemistry. What would the gold pegs be? Dr. prescribed medicines.

===

You can read the rest at:

Round Pegs In Round Holes.
10.29.2007 4:43pm
JosephSlater (mail):
On the merits I'm with Zooba, but Eli Rabett wins the thread.
10.29.2007 5:44pm
byomtov (mail):
Is everyone here sane?

Who in their right mind thinks, if Roe is overturned, that the Court will strike down or approve a Congressional ban on abortion based on fine constitutional arguments rather than the policy preferences of the Justices? Who imagines that a Court that overturns Roe would declare unconstitutional a federal law outlawing abortion nationwide?
10.29.2007 10:16pm
AK (mail):
Duh. Of course the Court reached the Commerce Clause issue. I was thinking of the partial-birth abortion case. Apologies to all.
11.1.2007 1:05pm
_Jon (mail) (www):
I am curious as to your thoughts on a Constitutional Amendment that would clarify (and hopefully tighten) the Commerce Clause so that it would no be abused by Congress as it has been.
11.1.2007 1:28pm