How will the Supremes rule on this? Clayton Cramer Blog
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The Partial Birth Abortion Ban
A few years back, Professor Glenn Reynolds made the point that a federal ban on partial-birth abortion was breaking a core doctrine of federalism--that the states are primarily responsible for exercise of police powers. Federal authority extends only to laws that affect interstate commerce.
Over the last few years, we've had a number of examples of Congress attempting to criminalize actions that were entirely within the authority of the states, and getting their noses rapped by the Supreme Court for the attempt: the Gun-Free Safe School Zones Act being one example.
The partial-birth abortion ban is in this same category. I see no problem with states passing such bans. My state, Idaho, already has a partial-birth abortion ban, Idaho Code sec. 18-613. If the federal ban is to be believed, 26 other states have already done so. If the other 23 states are unwilling to ban partial-birth abortion, I would guess that the limiting factor is a lack of popular will.
I find it interestng that the federal ban uses the language, "Any physician who, in or affecting interstate or foreign commerce..." to criminalize performing a partial-birth abortion. I suppose that a doctor might be able to protect himself by only performing such procedures for residents of his own state, and make an argument that prosecution under those conditions isn't "interstate or foreign commerce." But if you look at a montrosity such as Wickard v. Filburn (1942), a doctor who performs an abortion for a resident of the same state is altering the economics of abortion on a national scale. It would not bother me if the pro-partial birth abortion crowd used a suit to finally destroy the absurd argument of Wickard v. Filburn (1942).
I can see one possible rationale for a federal statute on this matter: argue by analogy to the various federal civil rights laws, and make the claim that this is a protection of the rights of a fetus guaranteed by the Fourteenth Amendment. The pro-partial birth abortion crowd would then to have to argue either that a fetus is about to be born isn't a person, or create a precedent that endangers the federal civil rights laws. That could be very, very interesting.
posted by Clayton at 10:15 AM
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