Posted by Ilya Somin:
A federalism chicken comes home to roost - The Commerce Clause and Partial
Birth Abortion:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163317224
It is interesting that, as Orin Kerr [1]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 abortion services provided to residents of the
same state where 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 [2]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 in
question (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 [3]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 groups) 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.
References
1. http://volokh.com/posts/1163289183.shtml
2. http://www.law.cornell.edu/supct/html/03-1454.ZS.html
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916965
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