Federalism and the Abortion Case:
Reading over the transcript from last Tuesday's Supreme Court argument involving the federal partial-birth abortion ban, I was interested to see that both Justice Stevens and Justice Ginsburg appear to have become sensitized to the scope of federal power and the role of the states in our federal system:
JUSTICE GINSBURG: . . . [U]p until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

GENERAL CLEMENT: Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context. . . .

JUSTICE STEVENS: General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

GENERAL CLEMENT: Justice Stevens, I don't think we have taken, the Federal Government hasn't taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There's not a jurisdictional element in the face statute. So there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.