Abortion and Enumerated Powers

[Glenn Reynolds]

Having been drawn out of lurker status, I'd like to ask if others on
the list agree with me that Congressional legislation regulating
abortion probably falls outside Congress' enumerated powers?

I think that in light of Lopez and Morrison, it is difficult to see
regulation of abortion as a legitimate exercise of the commerce
power.  I also rather doubt that, these days, it can be seen as a
legitimate exercise of Congress' Fourteenth Amendment Section 5
power.

I said this in a letter to the Times a couple of years ago, and got a
call from Rep. Canady's legislative assistant, who informed me that
the then-proposed Partial Birth Abortion bill met the Lopez test
because it only regulated abortions "in interstate commerce."
When I suggested that there were no such abortions, she said that
they hadn't really looked into that.

Am I crazy here?



Prof. Glenn Harlan Reynolds
College of Law, University of Tennessee
1505 W. Cumberland Ave., Knoxville, TN  37996-1810

"It is a chief characteristic of the religion
of science, that it works."  -- Isaac Asimov