The Liberty Papers

Today, the Supreme Court upheld a nationwide ban on the controversial abortion procedure that has come to be called “partial birth” abortion:

WASHINGTON — The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

The ruling is narrow, and it is significant in that it is the first Supreme Court ruling that deviated significantly from the precedent set in Roe v. Wade.

Now, I’m not writing here to debate whether the Court was right or not, or whether this particular abortion procedure is right or now. What I find interesting is the one question that the Court did not touch on — what authority does the United States Congress have to regulate a medical procedure? If a woman has an unplanned pregnancy then she should have every right to decide if she wants to have an abortion or not, as it is her body, no one else’s. There is plenty of guidance around abortion as well (just check out something like this Portland abortion clinic information here). So it’s not exactly hard for women to find what they are looking for. But going back to my original question, what authority does the United States Congress have to regulate a medical procedure?

Congressional authority derives solely from the power granted by Article I, Section 8 of the Constitution. Nowhere in there, of course, will you find a provision that gives Congress the authority to regulate the practice of medicine. So where, you might ask, does Congress claim the authority to regulate an abortion procedure ? From these words:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Yes, the Commerce Clause, which the Supreme Court has interpreted so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

In 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”

Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

The Commerce clause issue was not before the Court today, but Justice Thomas, joined by Justice Scalia, did have this to say in a concurring opinion:

I join the Court s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Court s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S.914, 980 983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).

Basically, Thomas is hinting that the door is open to a challenge to the law on Commerce Clause grounds. Interestingly enough, Thomas would probably vote to strike down the law on those grounds. What would be interesting to see is how the four Justices who dissented today, all of whom have traditionally held an expansive view of the Commerce Clause, would vote.

The problem with the partial birth abortion law has nothing to do with abortion. It has everything to do with a Congress that has assumed for itself powers that it was never intended to have.