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Federalism and the Abortion Case: Reading over the transcript from last Tuesday's Supreme Court argument involving the federal partial-birth abortion ban, I was interested to see that both Justice Stevens and Justice Ginsburg appear to have become sensitized to the scope of federal power and the role of the states in our federal system:
JUSTICE GINSBURG: . . . [U]p until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

GENERAL CLEMENT: Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context. . . .

JUSTICE STEVENS: General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

GENERAL CLEMENT: Justice Stevens, I don't think we have taken, the Federal Government hasn't taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There's not a jurisdictional element in the face statute. So there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.
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A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:

It is interesting that, as Orin Kerr notes in his recent post on the partial birth abortion case, liberal Supreme Court justices Ruth Bader Ginsburg and John Paul Stevens are suggesting that the 2003 federal law banning partial birth abortions may fall outside the bounds of Congress' power under the Commerce Clause. This is an example of the ways in which broad interpretations of the Commerce Clause - long supported by most liberal jurists and legal scholars - can be used to justify federal laws that liberals abhor.

It is particularly ironic that Justice Stevens would ask "how could the Commerce Clause justify application [of the partial birth abortion ban] to a free clinic? I don't understand." The text of the Commerce Clause gives Congress the power to regulate "commerce . . . among the several states." Free abortions provided to residents of the same state where the clinic is located are neither commercial nor interstate. So the text of the Constitution provides at least some support for Justice Stevens' skepticism.

Unfortunately, Stevens' own previous jurisprudence does not. Stevens is the author the Court's majority opinion in Gonzalez v. Raich, which held that the Commerce Clause gives Congress virtually unlimited power to regulate "economic activity," broadly defined to include any action that involves the "production, consumption, or distribution of commodities." Since abortion (whether free or not) necessarily involves the use ("consumption") of medical supplies, it clearly falls within Stevens' definition of economic activity in Raich. Indeed, Raich itself held that the mere possession of marijuana for medical purposes is "economic activity," even in a case where the marijuana st issue (much like the hypothetical abortion in Stevens' question) had been provided to the users for free. Moreover, even if free abortion clinics are not engaged in "economic activity," they could still be regulated under Raich so long as Congress could "rationally" suppose that such regulation of "noneconomic" activity was need as part of a broader regulatory program (in this case the policy of banning partial birth abortions by paid providers). For readers unversed in in the high-falutin' terminology of constitutional law, the word "rationally" in this context basically means that there is some theoretically conceivable argument to support Congress' reasoning, even if that argument is almost certainly wrong.

There are other ways in which the federal partial birth ban may be justified under Raich's interpretation of the Commerce Clause. I provide a more detailed analysis of the ways in which that case largely gutted limits on federal Commerce Clause authority in this article.

In the same piece, I also noted that the federal partial birth ban is just one of many recent examples of conservatives using broad interpretations of federal power to advance their policy objectives. The article also cites several liberal legal scholars and commentators (such as Harvard Law School Professor David Barron, pundit Franklin Foer, and some gay rights advocates) who have begun to rethink the desirability of backing virtually unlimited federal power as a result of these developments.

The Democrats' recapture of Congress in the recent election may put a damper on such rethinking. But given the narrowness of the new Democratic majorities, the moderate to conservative nature of many of the new Democratic congressmen and senators, and the possibility that the Republicans will recoup their losses in 2008 or 2010, it may not totally end it. Unlimited federal power can gore liberal Democratic oxen as readily as conservative Republican ones.

UPDATE: To avoid confusion, I should note that Solicitor General Paul Clement was right when he responded to Justice Ginsburg's questioning by noting that the federalism issue had not been raised by the parties to the case. Nor did it factor into the lower court's decision. Thus, it would be understandable if the Court ignored federalism issues in reaching its decision. However, if (as is highly likely) the Court upholds the partial birth ban against challenges based on privacy rights, the federalism issue could well come up in future litigation.

Related Posts (on one page):

  1. A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:
  2. Federalism and the Abortion Case:
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