Federalism and Abortion After Raich:

While I agree with Ilya that Gonzales v. Raich re-expanded the scope of the federal Commerce Clause power (as I argued here), I do not believe that it "gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit." Specifically, I believe that some potentially meaningful limitations on Congress' use of the Commerce Clause power remain that could, as a practical matter, prevent extensive federal regulation or prohibition of abortion.

A key element of the Court's holding in Raich was that the prohibition on the possession of medical marijuana was an essential part of a broader, comprehensive regulatory scheme governing the distribution and production of marijuana. To maintain this scheme, the Court held, Congress could reach all possess of marijuana, for whatever purpose. For this conclusion, the Court explicitly relied upon Wickard v. Filburn, in which the Court upheld the regulation of wheat production not intended for sale as a necessary component of a broader effort to regulate agriculture markets.

While the Court adopted an expansive understanding of "economic" activity subject to the the commerce power in Raich, it did not hold that Congress could independently regulate non-economic activities that do not, in themselves, have a substantial effect on interstate commerce. Nor did the Court suggest that a stand-alone federal prohibition on medical marijuana possession would be constitutional. To the contrary, it repeatedly noted that Congress could regulate medical marijuana possession because Congress believed such regulation was necessary to control and limit illegal drug markets.

For these reasons, I accept the proposition that Raich supports the regulation or prohibition of abortion as part of a broader, comprehensive federal regulatory scheme governing certain medical procedures, particularly insofar as such a scheme were focused on regulating the the market for medical services. In my view, however, Raich would not support the constitutionality of legislation that solely limits or prohibits specific medical procedures. Why does this matter? Because, as a practical matter, it might be easier for Congress to pass specific legislation targeting a specific procedure than to pass a broader regulatory regime of which a given abortion regulation or prohibition is a part. The need for Congress to regulate more broadly in order to regulate at all might serve to limit the likelihood of regulation.

I am also aware that this rule could have the perverse effect of inducing Congress regulate more in order to reach a given target of regulation. In some contexts, I believe this is a serious threat. In the case of abortion, however, I think that this rule would most likely serve to make federal regulation less likely. One reason for this is that 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.

What about the current federal partial-birth abortion ban? Is that law constitutional? In my view, the current law, as enacted, would survive Commerce Clause scrutiny, but not because the regulation of this procedure, as such, is within the scope of the Commerce Clause after Raich. Rather, I believe the current law would pass muster because it contains a jurisdictional element. By its express terms, the law only applies when a partial birth abortion is performed "in or affecting interstate or foreign commerce." This is not -- and should not -- be a meaningless limitation on the assertion of federal power. Rather, it should be taken to limit the act to cover only those instances of the activity that would, in themselves, substantially affect interstate commerce, and thus lie within the scope of the Commerce Clause power, leaving some instances of the procedure outside the scope of the federal prohibition.

The Court has taken precisely this approach before, and not so long ago. In Jones v. United States, for example, a unanimous Supreme Court construed the jurisdictional element in the federal arson statute quite narrowly to avoid a construction that was potentially problematic. I see no reason why the Court would not apply a similar approach to the federal partial birth abortion act were it presented with this argument in an appropriate case. The result would be a federal partial birth abortion ban that would be less than a complete, nationwide ban on this controversial procedure. Similarly, were Congress to attempt to prohibit other abortion procedures with statutes containing jurisdictional elements, these statutes would be so limited as well.

Of course, courts would not even need to consider these questions if so many Republicans were not fair weather federalists. As I've argued for years, members of Congress should consider for themselves whether given legislation offends the principles of federalism embodied in the Constitution, and not simply whether a given enactment will pass muster with a majority of the current Court.