Partial-Birth Abortion Ban Act

[isomin at gmu.edu]

Yes, "in or affecting interstate commerce" or other similar formulations are pretty standard in many federal statutes. One example is the Hobbs Act (criminalizing robberies that have this kind of "effect"), which has led to 2 equally divided en banc decisions by the 5th Circuit (U.S. v. Hickman; U.S. v. McFarland) in cases where the act (originally intended to criminalize literal "highway robbery") was used to prosecute robberies of convenience stores. 

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/

----- Original Message -----
From: JFN <jfnbl at earthlink.com>
Date: Friday, October 7, 2005 1:41 am
Subject: Partial-Birth Abortion Ban Act

> DOJ filed a petition for cert in Carhart v. Gonzales, where the 
> 8th 
> Cir. struck down the Partial-Birth Abortion Ban Act of 2003 
> because 
> it did not contain an exception to protect the health of the 
> mother. 
> The Act makes a criminal of "any physician who, in or affecting 
> interstate or foreign commerce, knowingly performs a partial-birth 
> abortion and thereby kills a human fetus."
> 
> Is anyone familiar with other federal statutes, or cases 
> considering 
> them, that define a crime by including "in or affecting interstate 
> or 
> foreign commerce" as an element of the crime. While it appears to 
> foreclose a Commerce Clause challenge, it raises a Due Process 
> issue. 
> Although that issue is not before the Court, and apparently not 
> considered below, the statute strikes me as ridiculously vague. 
> The 
> dissenters in Raich might conclude that if the doctor, patient and 
> facility are all in California, the procedure is not a federal 
> crime, 
> while the majority might conclude that it is. Defense counsel is 
> likely to argue that as an element of the crime, it's an issue of 
> fact for the jury to determine beyond a reasonable doubt. How 
> would 
> you advise a client here?
> 
> John Noble
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