Partial-Birth Abortion Ban Act

[Marty Lederman]

"Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words 'affecting commerce' to define their scope."  Lopez, 514 US at 630 (Breyer, dissenting).

See also pages 18-27 of http://www.scotusblog.com/movabletype/archives/Cutter.Senators.Final.pdf.

 
----- Original Message ----- 
From: "JFN" <jfnbl at earthlink.com>
To: <CONLAWPROF at lists.ucla.edu>
Cc: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, October 07, 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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