Is a Candidate's Abortion Position Irrelevant?

George Will has an interesting column arguing that a Presidential candidate's position on abortion should be irrelevant to many voters, particularly those who support abortion rights and live in states where the majority shares that view.

Many, perhaps most, Americans, foggy about the workings of their government, think that overturning Roe would make abortion, one of the nation's most common surgical procedures, illegal everywhere. All it actually would do is restore abortion as a practice subject to state regulation. But because Californians are content with current abortion law, their legislature probably would adopt it in state law.

It is not irrational for voters to care deeply about a candidate's stance regarding abortion because that stance is accurately considered an important signifier of the candidate's sensibilities and sympathies, and of his or her notion of sound constitutional reasoning. But regarding abortion itself, what a candidate thinks about abortion rights is not especially important.

While Will makes some important points, he also overstates his case. For instance, insofar as voters care about the legality of abortion in other jurisdictions, a candidate's views on abortion -- and the expected likelihood that a candidate's views will result in Supreme Court appointments influence Court jurisprudence on this issue -- would be quite relevant.

Abortion, Federalism, and Presidential Elections:

Jonathan Adler is right to suggest that George Will too readily concludes that presidential candidates' positions on abortion should be largely irrelevant to voters. Will claims that a Supreme Court decision overruling Roe v. Wade would restore "moral federalism," a system under which each state could adopt its own preferred policy on abortion. Thus, prochoice voters living in states with prochoice majorities have nothing to worry about (at least so far as their own states are concerned).

I wish that were true. But under the Supreme Court's recent federalism jurisprudence it simply isn't. The Supreme Court's 2005 decision in Gonzales v. Raich held that Congress can regulate any activity with even the slightest, extremely tenuous connection to "commerce." For the detailed explanation why, see my article on Raich. I also explained how Raich gives Congress the power to regulate abortion in this November 2006 post.

In my view, Raich is a severely flawed interpretation of Congress' Article I power to regulate "commerce among . . . the several states." Nonetheless, six Supreme Court justices signed on to it, and all six are still on the Court. Thus, if Roe v. Wade were overruled, current Supreme Court federalism doctrine gives Congress ample power to regulate or ban abortion in pretty much any way it sees fit. Sadly, Will's "moral federalism" has been rejected by the Court and is unlikely to be embraced by Congress of its own accord. Witness their 2003 law banning partial birth abortions, which the Supreme Court recently upheld in Gonzales v. Carhart.

So long as Congress is controlled by the Democrats, it is unlikely that any more federal laws restricting abortion will be enacted. However, the Democratic majority in Congress is narrow and it is not impossible that they will lose it sometime in the next few years. Thus, presidential candidates' positions on abortion are potentially much more important then Will suggests.

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.

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.