The Volokh Conspiracy

I certainly believe that federal statutes, such as the ban on "partial-birth" abortion violate federalism principles, transgress the limits of enumerated powers, and are contrary to the spirit (if not the letter) of the Supreme Court's federalism jurisprudence. (See for instance, this NRO article from 2002.) Given existing precedents, however, I do not beleive that a facial challenge to the federal Partial Birth Abortion act would have fared particularly well.

The big problem with making a commerce clause challenge to this specific statute is that it contains a jurisdictional element. Specifically, the prohibition only applies to "partial-birth" abortions that are conducted “in or affecting interstate or foreign commerce.” This would likely prevent the facial invalidation of the statute, as it effectively limits the application of the statute to those instances that are within the federal commerce clause power. Under existing precedent (e.g. Jones v. United States interpreting the jurisdictional element in the federal arson statute), the Court would almost certainly have adopted a narrow construction of the jurisdictional element to preserve the statute. Moreover, this approach would also convert as-applied constitutional challenges into statutory cases in which the court would merely consider whether a given occurrence fell within the scope of the statute's jurisdictional scope.