As David Bernstein points out, Justice Thomas (in a concurrence joined by Justice Scalia) raised the possibility that the federal ban may be outside the scope of congressional powers under the interstate commerce clause. In "Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban," 30 Connecticut Law Review 59 (1997), Glenn Reynolds and I argued that a federal ban on a particular abortion procedure is beyond the scope of congressional powers to regulate interstate commerce -- at least if the interstate commerce power is construed to mean anything less than a grant of powers to Congress to legislate on all possible subjects.
As Justice Thomas noted in his concurrence, the plaintiffs never raised the commerce clause issue. It is easy to understand why. If we are going to start actually obeying the commerce clause in regard to abortion restrictions, then, logically, the federal law against abortion clinic picketing (Freedom of Access to Clinic Entrances Act, "FACE") is also probably unconstitutional.
Reynolds and I suggest that, as a general matter, one way in which a nation can avoid being torn apart by contentious social issues, including abortion, is not to impose uniform national rules, but rather to let different jurisdictions establish different rules. Our approach is consistent with the text of the Constitution, which plainly grants Congress power to create national uniformity over certain specified subjects, but not over everything.
Related Posts (on one page):
- Federalist Society Online Debate on the Partial Birth Abortion case:
- How Many Justices Would Support a Commerce Clause Challenge to the Federal Partial Birth Abortion Ban?
- The Federal PBA Ban and the Commerce Clause:
- Federalism and Partial Birth Abortion:
- Federal Partial Birth Abortion Ban: A Violation of the Interstate Commerce Clause?
- Scalia Having Second Thoughts About the Commerce Clause?:
Is that necessarily true? I thought (though it has been a while since I've looked at the law) that FACE was based not on the Commerce Clause but on the 14th Amendment. Please correct me if I am wrong.
[DK: It's based on both, and the commerce issue was litigated extensively in the lower federal courts.]
[The NFA is based on the tax power, not the commerce power. However, the Gun Control Act is based on the commerce clause. Reynolds and I argued that some aspects of the GCA, particularly those pertaining solely to in-state possession, are outside the scope of the commmerce power, properly construed.]
Well, if different states adopted different policies in relation to abortion, then that would inevitably mean that people who want abortions are going to cross state lines in order to get abortions (unless they are too poor to do so, poor people in pro-life states will just have to have the kid). Pro-life states will see their abortion laws subverted by the free interstate movement of other people. Meanwhile, pro-choice people will have lost the argument that the choice to have an abortion is fundamentally within the domain of individual choice; your solution would admit that the government has a right to legislate on this issue. In other words, this idea doesn't get us out of the cultural conflict, it just answers the cultural conflict in a particularly ineffective way that is unlikely to get support (or deserve support) from either side of the cultural divide. And of course, because federal laws related to abortion discourage people from crossing state lines seeking abortions, those federal laws affect interstate commerce, so there's no constitutional reason to adopt this position.
I has always surprised me that the commerce clause issue was not raised by the NOW types.
US v. James, p.20 - "Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issuesunder Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny because it is based on “judicial fact finding” about the risk presented by “the acts that underlie ‘most’ convictions for attempted burglary.” Brief for Petitioner 34, 35."
· A Reliable Source item in the April 17 Style section incorrectly said that actor Nicolas Cage's son Kal-El was named for Superman's father. Kal-El is an alternate name for the comic-book superhero himself; Superman's father was Jor-El.
· A Reliable Source item in the April 17 Style section incorrectly said that actor Nicolas Cage's son Kal-El was named for Superman's father. Kal-El is an alternate name for the comic-book superhero himself; Superman's father was Jor-El.
I don’t see how that’s true at all. A large part of what’s driving the debate now is based on the fact that many people (rightfully) see Roe as the Court taking what was for 200 years a public policy issue decided democratically by the people through their elected legislators and imposing by fiat the views of their own members. So long as the issue was decided democratically, they might disagree with the outcome but could accept its legitimacy because they knew they could always had the opportunity to work to change it.
As far as having 50 battlegrounds, I think there’s probably more consensus as far as when abortion should be allowed and what restrictions should be placed on it within the 50 States than people might think. There will always be people on the outliers dissatisfied but the issue didn’t seem to dominate politics pre-Roe the way it does today.
It's true that both sides would clamor for a constitutional amendment. But I don't see a problem with that. First of all, amendments are really hard to pass so one wouldn't pass unless and until the issue were largely resolved on a national level. Second, the amendment process is a democratic process whereby the will of the people is expressed. That's all I'm looking for when I say I want Roe to be overturned.
I guess I just don't see the difference between people who are outraged by a judicial decision and people who are outraged by a legislative decision. If a state legislature votes to uphold abortion rights, someone who believes "abortion is murder" is not simply going to shrug and accept the legitimacy of the democratic process. They're going to work just as hard to undo that decision as they would have if it were a judicial issue; probably moreso, in fact, because they know that electing a pro-life legislator is directly going to impact the state of the law, whereas you have no similar ability to impact the Supreme Court.
It seems to me that people care far more passionately about the merits of the issue - should abortion be legal or not? - than they do about the procedural issue of which branch of government should decide. Sure, there are people on the pro-life side who complain about the Supreme Court's legitimacy, the same way people have complained about the Supreme Court's legitimacy since the inception of the institution every time a decision came down they didn't like. (Brown v. Board of Education is a classic case.)
Who are the people that work passionately to overturn Roe v. Wade, but won't work passionately to make abortion illegal in their state if Roe v. Wade is reversed, because all they really care about is the "legitimacy" of the process? I haven't met any such people. If anything, Roe v. Wade is what keeps abortion from being a far bigger issue in every Congressional election, in every state legislative election. It seems to me we'd have far more political activism involving abortion if Roe v. Wade ceased to exist.
And people from outside Massachusetts, then, wouldn't care at all about the fact that abortion was legal in Massachusetts, even if they felt abortion was murder. They'd simply shrug and say it's up to each State to make their own rules, just like people in the North didn't care about slavery so long as their own State didn't have it. Massachusetts would make their law and everyone would just accept it, no one would pursue an incremental strategy for chipping away at abortion rights, that's your view?
There wouldn'tbe much of a battle in South Dakota, where the populace is overwhelming in favor of outlawing abortions.
You have a funny definition of overwhelming. But putting that aside, if an abortion ban were passed, you think pro-choice advocates would just shrug and accept it? They wouldn't keep fighting, they wouldn't try to elect pro-choice legislators, they wouldn't try to pursue an incremental approach in order to restore abortion rights?
Consider that South Dakota, the first state that came to your mind as an example of a place so pro-life that the issue would be off the table, DID pass an abortion ban through the legislative process, the "legitimate" route that you're assuring me will take the issue off the table. And the people who opposed the ban DIDN'T just shrug their shoulders and accept the legitimacy of the ban, they organized a ballot referendum and got the ban overturned. No one thinks this will be the last battle, either.
I have no problem with any of that; it sounds like healthy democracy to me. But it hardly sounds like the issue is off the table just because it's being handled through the legislative process (indeed, that very statement is self-contradictory); according to the linked article, $4 million was spent on the referendum vote, which should tide everyone over until the next time the issue comes up.
I think there's a far greater chance of people coming to accept Roe v. Wade, the same way they've come to accept Brown v. Board of Education, than there is of people coming to accept the endlessly malleable legislative results in their own state. It's like you're arguing there will be less debate and controversy over an issue if we make it part of the political process.
Paying for an intact D&E is a commercial transaction, but given the small number of them a year the aggregate impact on the national economy would be negligible. But the number of abortions a year and certainly the number of medical procedures a year would have an effect on interstate commerce.
You honestly do not see a difference between a person aggressively campaigning for policy that they prefer and voting for legislators who support that policy and a person subverting the judicial process through "test cases" and confirming judges based on what they think the judge's policy preferences are? Regardless of whether you believe that the later ("campaigning for a judicial change in law") is a legitimate activity of the population, government, lawyer, etc., surely you cannot believe that it is the same as undergoing the normal political process.
Hi, Steve! I'm falafalafocus. I personally believe in rule of law and legislative response to bad policy. There is plenty of law that I view as bad and I do vote for those who promise to pass what I view to be good laws or repeal bad laws, but I accept that those laws are valid until repealed. I think that that is a fair statement on the "legitimacy" of the process (as you put it).
On the general post, however. I always worked under the impression that, because I did see the interstate commerce claim on abortion, the U.S. Congress was taking its authority based on the 14th Amendment, Section 5 and passing abortion law to ensure due process and equal protection of a constitutional right. Of course that always raised the problem of whether Congress would have any authority when the U.S. Supreme Court gets out of the business of calling this a right and demanding its protection. To that, I have no answer.
Of course they're valid. Are you saying you don't accept that Roe v. Wade is the law of the land, like it or not, until it gets reversed?
People disagree over whether Bush v. Gore was a proper exercise of the judicial power; does everyone get to decide for themselves if Bush is the real President? The notion of "legitimacy" seems to be rather elusive.
I still maintain that if the issue is debated and decided via the democratic process it will come to a workable equilibrium that is accepted by the a larger fraction of the populace than if the solution is chosen by the court. It would take time to reach that equilibrium and in the meantime abortion would be a hot issue in many political campaigns. But it already is.
The Controlled Substances Act has no such jurisdictional hook, and, thanks to Justice Stevens, none is implied in the Act or needs to be proven at trial. But, by its plain language, 18 USC 1531 provides otherwise. The bar might be low--proving, for example, no more than the fact that money exchanged hands for the abortion or that the equipment the abotionist used moved in interstate commerce. But the element remains.
Unless they see it as the sort of fundamental right where Jackson's good old Barnette quote applies, and the activity is beyond the right of any legislature, no matter how democratic, to restrict: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
http://www.claremont.org/repository/doclib/PBAbrief.pdf