Patterico's Pontifications

11/11/2006

The Commerce Clause and the Partial-Birth Abortion Ban

Filed under: Abortion,Court Decisions,General — Patterico @ 1:45 pm



In the oral arguments to the partial-birth abortion cases, the Justices and lawyers barely discussed whether the federal government has the constitutional authority under the Commerce Clause to enact such a law. When the issue finally came up, in the second argument, it was in a cynical question by Justice Ginsburg. Ms. Federalism made this amazingly disingenuous observation addressed to Solicitor General Paul Clement:

Because your time is running out I did want to ask you about a feature of this legislation that hasn’t come up so far, and that is perhaps stimulated by Stenberg. But up 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.

It has??

General Clement managed to restrain himself from saying: “Gee, Justice Ginsburg . . . may I quote you on that?”

Ed Whelan sums up my incredulous reaction:

Does Ginsburg not realize that she joined the five-justice majority in Stenberg v. Carhart that deprived states of this very choice?

Whelan says that Ginsburg “displayed remarkable chutzpah (or obtuseness)” in making this comment. I say Whelan is being kind.

But let’s place Ginsburg’s cynical posturing aside and explore the answer to her question. It’s an academic question, because the issue was not briefed by the parties or seriously discussed at oral argument. Still, it’s worth exploring if you’re interested in what authority the federal government has (or should have).

Ed Whelan says the law is within the federal government’s Commerce Clause powers:

The act itself includes a jurisdictional element that limits its application to violations that are in or affect interstate commerce. There may well be as-applied challenges to the scope of the act, but there is no reason to regard it as facially beyond Congress’s power. In addition, plaintiffs, eager to preserve the Freedom of Access to Clinic Entrances Act, deliberately waived any argument based on lack of congressional power.

The “jurisdictional element” is contained in the statute, which says the Act applies to “[a]ny physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion . . .”

Xrlq, by contrast, says the law is not within the Commerce Clause power.

Xrlq’s argument, however, predates the terrible Raich v. Gonzales case, which defanged the Lopez and Morrison cases on which Xrlq relies. Raich v. Gonzales breathed new life into Wickard v. Filburn, which I have previously argued “held more potential for totalitarianism than any other” case I read in law school. After Raich, I think it’s clear that the federal government can do just about anything it likes, if there is even a tenuous arguable relationship to interstate commerce.

Indeed, in her dissent in Raich, Justice O’Connor said that the Court now sees Lopez as little more than a “drafting guide.” Congress need only insert boilerplate language limiting a law’s effect to “interstate commerce” — a concept so broad as to encompass even cultivation of wheat for personal uses (Wickard) or personal cultivation and consumption of marijuana (Raich).

So, while I suspect that Xrlq would continue to maintain that his analysis is right, even he might concede that it would require the Court to overrule Raich to get there.

Perhaps for these reasons, as Whelan notes above, the issue wasn’t even briefed by the parties. Here is General Clement’s response to Justice Ginsburg’s question, along with follow-up questions and answers:

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. [This is the statement that the Act applies only to partial-birth abortions in or affecting interstate commerce, as I noted above. — Patterico] 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. [And that is the reference to the Freedom of Access to Clinic Entrances Act, or “FACE Act,” that Whelan refers to. You’ll see further references to this act in the transcript, which refers to it as the “face act.” — Patterico]

JUSTICE GINSBERG: Well I know, when it is a question of funding —

GENERAL CLEMENT: Well but also access to clinics, in the the face act, which is also —

JUSTICE SCALIA: The best example where government has gotten involved in overriding what the states want to do is Casey. It seems rather odd for this Court to be concerned about stepping on the toes of the states.

GENERAL CLEMENT: Well — it’s certainly true that abortion has been dealt with at a Federal level one way or another since 1973. So I think that’s also part of the backdrop, but I also think, I mean, you know, the Federal Government gets involved in this issue, you know, depending on your perspective, for good or for harm. It’s there to protect access to the abortion clinics —

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.

GENERAL CLEMENT: Well, I think by, I mean, you know, the Court’s precedents in other areas [he means Raich and Wickard — Patterico] has suggested it’s just not a matter of whether the ultimate service is provided in commerce but in order to get the services they have to take —

JUSTICE STEVENS: Activities that —

GENERAL CLEMENT: Yes. Exactly. I don’t, I mean, that hasn’t been briefed up in this case. If it had been we’d probably have a definitive position one way or another. But I don’t think the constitutionality in this facial challenge where that hasn’t been a feature of the challenge turns on the answer to that question one way or another.

Bottom line: The constitutionality of this Act will not depend in any way on an interpretation of the Commerce Clause. That is another function of the Court’s decision in Raich.

17 Responses to “The Commerce Clause and the Partial-Birth Abortion Ban”

  1. The free clinic affects intrastate commerce by being free, just as the farmer growing his own corn does. As well, the clinic, by offering abortions to those from other states (even if they have to move there six months before the procedure), deprives the clinics in other states.

    It’s possible that they’ll come to their senses before the revolution.

    htom (412a17)

  2. Unbelievable what they have done with the commerce clause. Someone should make a website of the most ridiculous uses of it.

    fred (44375f)

  3. As many Scotus observers noticed, this is not the only time ginsburg reaches different conclusions on the same issue. Though ginsburg is probably the only justice to reach different conclusions on the same issue on opinions issued on the same day. Her dissent in the Michigan racial prefernce undergraduate case arguered that neither undergrad had standing while she had no issue with standing in the graduate case even though the facts regarding standing were almost identical. the only real difference was that there were 5 votes to overturn the preference in the undergraduate case – Had there been 5 votes to overturn the preference in the graduate case, she would have dissented due to lack of standing.

    Her opinions and dissents are almost always results oriented.

    Joe Kosanda

    joe kosanda (617f26)

  4. I agreed with Raich (I don’t want some California doper harvesting his marijuana and smoking it three days later in his car on I-94, in downtown Chicago, while I’m taking my daughter to her music class) and I hope the four conservative justices will at least make the Court confront the issue directly on “undue burdens” or whatever other substantive grounds and not on lack of federal jurisdiction.

    Less polemically, the left’s characterization as the “banning of a medical procedure” begs the question. Twenty years or so before Wickard v. Filburn, the Food and Drug Act banned the “medical procedure” of giving opium dissolved in alcohol to babies with teething pain. (No, I am not suggesting that Congress can decree that partial birth abortions should be performed without anesthesia for the mother. Rather that the interests here are much more stronger than a farmer growing feed for his calves.)

    nk (57e995)

  5. The Court essentially nationalized abortion in 1972, and Casey reiterated this point:

    “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

    Rehnquist also pointed out that:

    “But while the language and holdings of these cases appeared to leave States free to regulate abortion procedures in a variety of ways, later decisions based on them have found considerably less latitude for such regulations than might have been expected.”

    and I don’t think this was refuted by the majority.

    Given the failed history of attempted state regulation, and the undesirability (by abortion proponents, at least) that there should be substantive variation among states, only Congress has the power to deal with it. One could rationally claim this power comes from the enforcement clause of the hidden Abortion Amendment, but that might be a bit snarky. But clearly whatever source the Court draws upon for its ruling equally empowers Congress to enforce and regulate.

    Don’t need the Commerce clause to get here.

    But even if one did, Lopez and Morrison doesn’t bear, as that was about impossible stretches of the Clause, and abortion differences among states will clearly lead to interstate commerce. Differences in where you can have a gun or attack women probably won’t. Raich helps, of course, but in the end Wickard is just as good. I thought XRLQ was wrong then, too.

    Kevin Murphy (0b2493)

  6. Patterico:

    So, while I suspect that Xrlq would continue to maintain that his analysis is right, even he might concede that it would require the Court to overrule Raich to get there.

    Close. Raich may have defanged Lopez and Morrison but it didn’t overrule them outright, so if the court wanted to do the right thing now, it could similarly distinguish Raich, perhaps by distinguishing products from services. Start with the premise that Congress has the power to prohibit all interstate trade of both marijuana and partial-birth abortions (I disagree with that premise, but the Supreme Court does not, and would probably have to overrule a lot more than Raich if they did). From there, it’s easy to see how any allowance for marijuana in a single state will inevitably undermine the Congress’s ability to perform its constitutional function with respect to movable products, but not so for services. Put differently, California could legalize partial-birth abortion tomorrow and not cause a single partial-birth abortion to occur in Oregon, Nevada, Arizona, or anywhere else. But legalize pot in California, and I can guarantee that some of it will turn up in Chicago.

    Kevin:

    One could rationally claim this power comes from the enforcement clause of the hidden Abortion Amendment, but that might be a bit snarky. But clearly whatever source the Court draws upon for its ruling equally empowers Congress to enforce and regulate.

    I don’t think that’s clear at all. If the invisible Abortion Amendment has no enforcement clause, the court has power to enforce that amendment but Congress’s only power is to restrict the court’s jurisdiction to hear such cases. If the Abortion Amendment does have an enforcement clause, and that invisible clause reads similarly to those of the 13th, 14th and 15th Amendments, then Congress may well have a power to prohibit the states from passing partial-birth abortion bans, but no power to prohibit abortions under any circumstances (cf. a federal statute requiring states to discriminate by race to the full extent allowable by the Equal Protection Clause).

    But even if one did [need the Commerce Clause to constitutionalize a federal ban on partial-birth abortion], Lopez and Morrison doesn’t bear, as that was about impossible stretches of the Clause, and abortion differences among states will clearly lead to interstate commerce. Differences in where you can have a gun or attack women probably won’t.

    I don’t see how partial-birth abortion will lead to interstate commerce, unless you define interstate commerce to mean the customer travels from State A to State B to purchase and consume a product that is not available in State A. If the product is a movable good (e.g., a gun we Virginians can own but you Californians can’t), then that kind of commerce can end up undermining the laws of State A. But allowing State B to perform partial birth abortions doesn’t do that. Like legalized gambling in Nevada or Atlantic City, it may result in many State A residents traveling to State B, but it won’t result in a single partial birth abortion occurring within the borders of State A.

    That said, while I still think I’m right about the constitutionality of a federal partial birth abortion ban, I am NOT prediction that the Supreme Court will get it right. From the looks of the transcript, federalism is getting short shrift here, so if I had to predict how the opinion will read, I’d predict that federalism will be ignored entirely, or at most merit a snarky remarky from the anti-federalist, pro-abortion liberals.

    Xrlq (6a68a2)

  7. @nk:
    go back and read the case, wickard v. filburn was about a farmer growing grain for his family too. calling this “interstate commerce” expanded federal jurisdiction ad infinitum.
    your fear of california dopers smoking their product in downtown chicago is overblown. there’s still federal jurisdiction over carrying it across state lines, and state jurisdiction over impaired drivers. it doesn’t sound like you have very much compassion for the people who need this medicine. fortunately, it’s still freely available, and the federal prohibition engenders the same sort of cynicism and disrespect for the law caused by the volstead act in the 1920’s.

    assistant devil's advocate (e58d1a)

  8. ada,

    Honestly, I was only discussing whether it has enough potential interstate consequences to make it a national issue and not a state issue. I would not deny anyone, anywhere, any medicine whether it was therapeutic, palliative, analgesic or even placebo. (But having grown up with Cheech and Chong, I cannot resist the occasional marijuana joke, or snark if you wish.) I further concede that doctors now prescribe hundreds of drugs which are more dangerous than marijuana.

    nk (d7a872)

  9. It appears that most, if not all, of the commenters here are either lawyers or have some legal training or background, so I thought I would provide my admittedly non-legal perspective.

    I’ll start by stating what I believe is a basic conclusion that anyone who is even remotely literate arrives at after reading the Constitution:

    There is not one syllable in the Constitution that gives the Federal government any role whatsoever on the issue of abortion – therefore the 10th amendment is operative and the issue belongs to the states and the people.

    There are no “penumbras” emanating from any of its clauses that in any way allows the fertile minds of judges to bastardize the plain meaning of the text.

    Interstate commerce means “interstate commerce” – the buying or selling of commodities between two or more states. It does not mean “intrastate commerce” or any type of non-commericial activities.

    The majority of justices on the Supreme Court in 1973 were simply making it up as they went along to fit their own ideological preferences and subsequent justices through a combination of cowardice and repeatedly invoking the words “stare decisis” like some type of bizarre religious incantation have refused to correct the mistakes of the past.

    The Supreme Court abdicated its responsibility to be a check against usurpations of power by the Executive & Legislative branches in the late 1930’s after being spooked by FDR’s “court-packing” scheme (as illustrated by decisions such as Wickard cited by Patterico) and have been little more than willing accomplices ever since.

    And with that, I will now step off of the soapbox after asking a basic question to all of those legal scholars out there:

    Why couldn’t Congress if it so chose exercise its legitimate powers under Article III and simply remove abortion from the jurisdiction of the Supreme Court??

    I realize that the proverbial snowball has a better chance in Hell than I have of ever seeing a Congress have the courage to stand up to the Court in this way, but in my mind the most effective way of re-establishing the proper role of the Court in general is through the vigorous exercise of Article III powers, so I would be curious to hear any feedback on this question.

    Iotrader20 (4b196e)

  10. A related side opinion: Paul Clement, the Solicitor General, should be at the top of the list of potential nominees if a vacancy on the court occurs soon. I don’t know whether anyone could be confirmed at this point, but he’s young, really smart, and has at least as good a shot as any other conservative nominee.

    (I’m not sure if this a disclaimer or simply the basis of my opinion, but I’ve met him and I’ve heard him argue two cases in the Supreme Court. The man speaks in paragraphs without notes. I don’t know whether that comes through in the recordings, which I haven’t heard.)

    Attila (Pillage Idiot) (88e3e3)

  11. xrlq–

    I don’t see how partial-birth abortion will lead to interstate commerce, unless you define interstate commerce to mean the customer travels from State A to State B to purchase and consume a product that is not available in State A.

    Well, yes, of course.

    Is not travel between states “interstate commerce”? Seems much less of a stretch than wheat grown for local consumption, considering that Congress has had no problem regulating air travel, trucking, automobiles, IDs(!), etc. And what about the Mann Act?

    I fear that we agree on what should be, but not what is. Wickard is an abomination, but also firm precedent.

    Kevin Murphy (0b2493)

  12. xrlq–

    f the Abortion Amendment does have an enforcement clause, and that invisible clause reads similarly to those of the 13th, 14th and 15th Amendments, then Congress may well have a power to prohibit the states from passing partial-birth abortion bans, but no power to prohibit abortions under any circumstances (cf. a federal statute requiring states to discriminate by race to the full extent allowable by the Equal Protection Clause).

    Um, you mean like a law requiring affirmative action programs by federal contractors?

    Kevin Murphy (0b2493)

  13. and then there’s this from a Volokh commenter, which might seem silly until you look at what straws the Court has grasped in the past:

    JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don’t understand.

    If my clinic sells abortions at half price in Nevada, it might induce some Californians to have their gobs of tissue removed at my clinic. So clinics in California may have to lower prices to match.

    If I’m giving away abortions for free (maybe I’m hungry), the same principle applies: California doctors might have to lower their prices if they wanted people to stay in-state.

    Any “free” enterprise that takes business away from commercial enterprises is affecting commerce, which means it’s affecting interstate commerce.

    In a more general sense, how can killing a fetus not affect interstate commerce? We’re talking about a fetus that would otherwise become a baby. Do you have any idea how much money people spend on their children? Some of those child-raising products come from out of state. And then the kid’s going to grow up and join the labor market. Demographics affect interstate commerce!

    Kevin Murphy (0b2493)

  14. Is not travel between states “interstate commerce”?

    Commercial travel is. Traveling to another state, in and of itself, is not. Traveling for purposes of engaging in a particular commercial act gets closer.

    And what about the Mann Act?

    The Mann Act would actually be quite helpful to my argument, if it didn’t predate Wickard. The whole idea of banning transporting women across state lines for immoral purposes, rather than banning the immoral conduct itself, rests on the assumption that a narrowly-drawn travel restriction is the farthest the Commerce Clause will allow the feds to go. Under that rule, the feds might be allowed to ban interstate travel for purposes of obtaining or providing a partial-birth abortion, but that’s about it.

    Wickard is an abomination, but also firm precedent.

    True, but until Lopez and Morrison are overruled outright (as I fear they will be, judging by the Roberts confirmation hearings), I’m clinging to the notion that they still mean something, if not as much as I’d like them to mean. And the moveable goods vs. services distinction strikes me as as good a distinction as anything.

    Um, you mean like a law requiring affirmative action programs by federal contractors?

    No. That law has nothing to do with the Fourteenth Amendment. A better analogy would be a federal law requiring/prohibiting the states from having affirmative action. My view, based on the assumption that race-based affirmative action is only barely allowable under the Equal Protection Clause, and not mandated in any way, shape or form, is that a law intended to enforce the Equal Protection Clause may do so by outlawing affirmative action, but cannot do so by mandating it. Under that logic, a federal law patterned after MCRI or Cal. Prop 209, which bans the states from employing racial preferences, would be a valid exercise of the enforcement clause of the 14th Amendment, but a federal law mandating affirmative action would not be (though it might be upheld on some other basis).

    Xrlq (8c3d28)

  15. In any event, you would have to agree that an argument by the pro-abortion faction that abortion rules are “state’s rights” would be ironic in the extreme. As Rehnquist pointed out, the Court has left the states with an empty bag, and such an argument would mean that the “choice” faction has run plumb out of penumbrae.

    Kevin Murphy (0b2493)

  16. Actually, I think the Mann Act works for me better. The first use, and many other uses of the act had nothing whatsoever to do with commerce, unless you want to say that removing a prostitute from the sex trade affects commerce, or that in some way adultery is commerce, or that moving a 17-year-old to a state with a lower age of consent disturbs the teenage dating market.

    As far as “viewed as limited”, this was an age that thought you needed an Amendment to ban alcohol, something that seems to have gone by the wayside lately (see Raich and all of the drug laws).

    Now, Mann is of course invalid for the most part today, but for reasons unrelated to the lack of a commerce argument regarding interstate “immorality.” But I think it is an historical case that is further afield than the PBA law.

    On the other hand, I must admit that seeing the PBA struck down on a commerce clause limitation would be good, both for Lopez, etc, and seeing Souter and Ginsberg argue the point with a straight face. But it won’t happen. They won’t touch on it except maybe in some side opinion, and that will only mention the travel for commerce aspect.

    Kevin Murphy (0b2493)

  17. You’re probably right about that. Justice Scalia jumped the shark in Raich, Justice Roberts described Lopez as a drafting guide in the hearings, and all four liberals on the court are committed to the idea that the commerce clause makes every state in the union nothing more than an administrative division of the federal government, which in turn should properly be called the United State of America. That leaves Justice Thomas, and possibly Justice Alito, who are likely to take my position seriously. And even Alito is in doubt, as his last big commerce clause case came on the heels of Lopez, long before Raich.

    Xrlq (f52b4f)


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