Lindsey Graham’s Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism – But it Might Fly Under Current Supreme Court Precedent
GOP Sen. Lindsey Graham recently proposed a federal law banning most abortions more than 15 weeks into a pregnancy. The idea flies in the face of many years of Republican rhetoric to the effect that overruling Roe v. Wade would return the issue of abortion to the states. If enacted, it would also be an unconstitutional extension of federal power. But it might nonetheless be upheld under the Supreme Court’s overbroad interpretation of federal power to regulate interstate commerce.
Graham’s proposed bill cites two possible sources of federal authority to restrict abortion: the Fourteenth Amendment, and the Commerce Clause. In a Washington Post op ed, prominent conservative legal scholar John Yoo argues that neither holds up. Yoo is absolutely right about the very weak Fourteenth Amendment theory. See also the more detailed analysis of this rationale for a federal abortion ban by co-blogger Jonathan Adler.
I also agree with Yoo that the Commerce Clause theory is wrong. But I fear he underrates the possibility that it could fly under the Supreme Court’s current extremely broad interpretation of the Commerce Clause. I explained why in a previous post:
Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress’ power to regulate interstate commerce includes the authority to restrict almost any “economic activity,” so long as it has a “substantial effect” on interstate trade. And [in Raich] “economic activity” is defined very broadly to include anything that involves the “production, distribution, and consumption of commodities.” That definition allowed the Court to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the “consumption” and “distribution” of commodities, such as medical supplies. In addition, most abortions qualify as “economic” transactions because doctors, nurses, and others are paid to perform them.
One could argue that a federal law banning or severely restricting abortions isn’t “really” aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.
If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe, Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions – even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A…..
The Commerce Clause rationale for abortion restrictions might not apply to abortions that are performed on a noncommercial basis by staff who provide their services for free. But such cases are only a small percentage of the total. Moreover, in Raich, the Court upheld the ban on Angel Raich’s possession of marijuana even though the producers had in fact provided it to her for free. The theory was that even such completely noncommercial production and distributi
Article from Reason.com