More on Raich, Federalism, and Abortion:

It appears that co-blogger Jonathan Adler and I have a slight disagreement over the degree to which the Supreme Court’s decision in Gonzales v. Raich allows Congress to use its Commerce Clause powers to regulate “commerce . . . among the several states” to regulate or ban abortion. Despite Jonathan’s thoughtful comments, I continue to believe that, post-Raich, Congress has the power to regulate or forbid abortion in virtually any way it sees fit – at least in so far as as federalism concerns are at issue. Obviously, there will still be individual rights constraints on abortion regulation for as long as Roe v. Wade remains in force.

Jonathan correctly points out that Raich (like previous decisions), gives Congress the power to regulate anything that might be considered “economic activity” and also any noneconomic activity that is part of a “broader regulatory scheme” that incorporates economic activity.

However, both of these categories of congressional power under Raich are even broader than Jonathan supposes. Not only did the Court allow Congress the power to regulate anything that counts as “economic activity,” it also defined “economic” to include any activity that involves the “production, distribution, and consumption of commodities.” That definition is broad enough to include virtually any abortion because all abortions involve the consumption of medical supplies that surely count as “commodities.” Moreover, abortion itself could be considered a “commodity” under Raich, since it is a service usually provided by professionals who work for pay (unlike the marijuana in Raich, which was grown by volunteers working for free). The “economic activity” test would not only be enough to uphold regulations banning or restricting all abortions, but also those that ban or restrict a specific abortion procedure. After all, such procedures also use medical supplies and are also often provided through market transactions involving paid professionals.

But even if there is some small subset of abortions that don’t count as “economic activity” under Raich (e.g. – the abortion is performed for free by a doctor who doesn’t use any perishable medical supplies in the process), it could probably still be regulated or banned by Congress as part of a “broader regulatory scheme.” In this regard, it is important to recognize that Raich significantly watered down the standards for including noneconomic activity in a broader regulatory scheme relative to the Court’s previous decisions in United States v. Lopez (1995) and United States v. Morrison (2000). While these earlier cases suggested that noneconomic activity can only be swept into a broader regulatory scheme if its inclusion is “essential,” Raich holds that the it is enough for Congress to have a “rational basis” for believing that its inclusion is desirable. As constitutional law mavens know, the “rational basis” test in this context is a virtual blank check for Congress to do as it pleases. It need not even come up with the needed “rational basis” ahead of time, but can rely on government lawyers or judges to invent one after the fact.

Under this permissive standard, it would be very easy for Congress to link any abortion restrictions it chose to enact to a “broader regulatory scheme.” For example, it could tie the restrictions to preexisting medical safety regulations, to laws regulating the distribution of medical supplies, and so forth. Jonathan supposes that the need to tie abortion regulation to a broader regulatory scheme might seriously inhibit Congress because “in the abortion context it is far easier to produce an effective legislative majority on narrow questions — e.g., prohibiting “partial-birth” abortion, etc. — than on abortion policy more broadly.” This however, assumes that narrowly targeted abortion regulations could only be enacted as part of a new broader regulatory scheme. In reality, they could simply be linked to preexisting federal laws regulating medical safety or related issues. Under the rational basis test, it would be simple for Congress to find a connection between the new regulation and the old ones close enough to pass judicial scrutiny.

For a more detailed discussion these aspects of Raich, see my article on the case. Ironically, Jonathan himself also wrote an article on Raich, where he explained why that case essentially wipes out the possibility of judicially enforced restrictions on Congress’ powers under the Commerce Clause. Jonathan has every right to change his mind about Raich. But, so far, I find his excellent earlier article more persuasive than his recent blog post.

Finally, I agree with Jonathan that Congress should exercise restraint and forego unconstitutional legislation even in cases where the Court is willing to permit it. But I have very little confidence that either political party will actually do that. There is ample evidence to suggest that both Democrats and Republicans are willing to enact legislation of dubious constitutionality when it suits their political purposes to do so.