Abortion and Enumerated Powers
lesl at UDEL.EDU
Tue Jan 23 15:50:22 PST 2001
neat question, but if it is in Congress's power wouldn't it still get
trumped by "right to privacy"? Did you have to hypothsize that the
right had been dropped by the Court?
> Glenn Reynolds (and others) might be interested in a "contest" I
> launched for *Constitutional Commentary*. The contest is based
> on one of my exam questions for a con law take-home last spring,
> raising the question of whether a congressional ban on sex-
> selective abortion is within any enumerated power of Congress,
> including commerce, section 5 (enforcing equal protection), or as a
> spending-power condition, and whether such a ban would violate
> the free-floating "federalism" clause located in some penumbra or
> another of the Constitution.
> It's a nifty problem (if I say so myself), and Con Com will publish
> the winning answers, limited to six double-spaced pages, written in
> three days (the same time period and space restrictions as the
> take-home). Winners will also receive a lovely Constitutional
> Commentary t-shirt.
> Full details, and the question, are published as
> Michael Stokes Paulsen, *Looking for a Model Answer: May
> Congress Prohibit Sex-Selective Abortions?" 17 Const. Comm. 165
> (Summer 2000).
> You should also check out Gary Lawson's "Casey at the Court"
> which is arguably the best poetry-parody we've ever published.
> Sorry about the shameless promotion.
> Michael Stokes Paulsen
> University of Minnesota Law School
> Priority: normal
> Date sent: Mon, 22 Jan 2001 13:11:22 -0500
> Send reply to: Discussion list for con law professors <CONLAWPROF at listserv.ucla.edu>
> From: Glenn Reynolds <Reynolds at LIBRA.LAW.UTK.EDU>
> Organization: Univ of Tennessee College of Law
> Subject: Abortion and Enumerated Powers
> To: CONLAWPROF at listserv.ucla.edu
> > 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
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