Abortion and Enumerated Powers

[Ken Katkin]

In honor of today's anniversary of Roe, I'll take a stab at addressing
Prof. Reynolds's question:

Although modern cases have not tended to treat it as such, abortion
generally is "commercial activity" in the sense that abortions are
usually performed in exchange for money, on a fee per service basis.
Taken in the aggregate, the total sum of money spent on
abortions--although wholly intrastate--might exert substantial effects on
the national economy.  Stated differently, the national economy might
experience some substantial effects--i.e. might be substantially
affected--if all the money that is today spent on abortion services were
instead spent on something else, or not spent at all.  I take it that
this is all that is required to support the federal regulation of wholly
intrastate commercial activity, even after Morrison and Lopez.

Moreover, any legislation that regulates the channels and
instrumentalities of interstate commerce by prohibiting, for example, the
crossing of state lines to obtain an abortion commercially (i.e. for
money) would presumably be sustainable against a Commerce Clause attack
based on doctrine that dates back to Champion v. Ames.


Glenn Reynolds wrote:

> 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

--
Prof. Ken Katkin
Salmon P. Chase College of Law
561 Nunn Hall
Northern Kentucky University
Highland Heights, KY 41099
(859) 572-5861 phone
(859) 572-5342 fax
katkink at nku.edu

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