Partial-Birth Abortion Ban Act
masinter at nova.edu
Mon Oct 10 07:28:46 PDT 2005
Ayotte v. Planned Parenthood of Northern New England likely will decide
whether facial challenges to abortion statutes must surmount the "no set
of circumstances" standard of United States v. Salerno, 481 U.S. 739
(1987) or can continute to proceed under the relaxed standard implicitly
applied since Roe and commonly associated with first amendment overbreadth
challenges. If Salerno governs facial challenges, then only an as applied
challenge would be possible since there will always be an imagineable set
of circumstances in which the application of the statute would not exceed
the commerce clause power of congress.
As an aside, doesn't Ayotte forecast a route by which a more conservative
Court might now deal with abortion -- why overrule Roe and risk the
survival of the coalition that has produced a republican majority (Jack
Balkin has written extensively here) when all the Court has to do is 1)
rule that henceforth Salerno governs facial challenges (and that therefore
facial challenges fail) and 2) when presented with an as applied
challenge, find that in the particular circumstance before the Court, the
state or federal restriction does not impose an undue burden. Roe
formally survives, but states and congress are free to restrict the
availability of abortions, leaving women with substantial means the
freedom to travel to states that permit abortions within limits imposed by
a congress constrained in the exercise of its power by self preservation
and the threat of a filibuster. As long as upper middle class women can
secure an abortion, the republican coalition holds (though other conflicts
may fracture it).
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University (954) 262-6151 (voice)
Shepard Broad Law Center (954) 262-3835 (fax)
masinter at nova.edu Chair, ACLU of Florida Legal Panel
On Mon, 10 Oct 2005 Hamilton02 at aol.com wrote:
> I would like to hear more about John's view on the Due Process claim. Is it
> just a "vagueness" claim, and does that really work?
> But in response to Marty's defense of the Act -- supposedly the language
> "affecting commerce" is a magic bullet against federalism review. But isn't
> the standard following Lopez (which is why Breyer is talking about "affecting
> commerce" in dissent), "substantially affects commerce?" If so, then assuming
> all other elements of the statute are constitutional, it would be
> unconstitutional when the plaintiffs cannot prove the act in question substantially
> affects commerce, even if they can prove it just affects commerce?
> Also-- Doesn't that mean that one could make a facial challenge to such a
> statute, saying that it is so overbroad as to be unconstitutional?
> In a message dated 10/10/2005 5:09:21 A.M. Eastern Standard Time,
> marty.lederman at comcast.net writes:
> "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_ (mailto:jfnbl at earthlink.com) >
> To: <_CONLAWPROF at lists.ucla.edu_ (mailto:CONLAWPROF at lists.ucla.edu) >
> Cc: <_CONLAWPROF at lists.ucla.edu_ (mailto: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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