Partial-Birth Abortion Ban Act

Marty Lederman marty.lederman at
Mon Oct 10 08:43:28 PDT 2005

No.  Even if one accepts that the Court should or will apply a serious "substantially affects commerce" test in certain circumstances (and I, for one, don't agree that it should), that test is unnecessary -- inapposite -- where there's a jurisdictional element, because such an element ensures an affect on IC in every case, which is all the Constitution requires.  Or so I (and a couple of courts of appeals) have argued, in any event.  From my Cutter amicus brief:

The "affect[ing] interstate commerce" element limits the statute's coverage to a "'discrete set of [acts] that . . . have an explicit connection with or effect on interstate commerce.'" Morrison, 529 U.S. at 611-612 (quoting Lopez, 514 U.S. at 562). Absent the jurisdictional element, there would be a risk that "a few random instances of interstate effects could be used to justify regulation of a multitude of intrastate transactions with no interstate effects." United States v. Harrington, 108 F.3d 1460, 1467 (D.C. Cir. 1997). But with the requirement of proof of an effect on interstate commerce in every case, there is no such concern: "each case stands alone on its evidence that a concrete and specific effect does exist," id., and the inclusion of the element "addresses the Lopez Court's constitutional concern that congressional authority under the Commerce Clause not become a 'general police power of the sort retained by the States,'" United States v. Capozzi, 347 F.3d 327, 336 (1st Cir. 2003) (quoting Lopez, 514 U.S. at 567), cert. denied, 124 S. Ct. 1187 (2004).

Alternatively, one can argue that even if "substantial effects" in the aggregate are required, the jurisdictional element ensures such substantial effects because the (nontrivial) effects in each case will be aggregated together to create a "substantial" whole.  (I believe this argument appears in a Posner opinion somewhere, perhaps involving the Hobbs Act.)  Such an argument probably depends, of course, on how many individual cases the statute covers, and how one discerns "substantiality."

So, yes, the "affecting commerce" element is a "magic bullet" against facial Commerce Clause review.  (That's why virtually no one challenges the facial validity of the Hobbs Act, RICO, etc., on Commerce Clause grounds.)  But proof of a "concrete" and "explicit" effect is still required in each case, which can lead to the sorts of "as applied" challenges that have been raised against, e.g., Hobbs Act prosecutions for robberies of individuals.  See my Cutter brief at 24-25 & n.22 (citing Wilkerson, 361 F.3d at 726-732, which describes how courts have carefully considered such questions under the Hobbs Act).
  ----- Original Message ----- 
  From: Hamilton02 at 
  To: marty.lederman at ; CONLAWPROF at ; jfnbl at 
  Sent: Monday, October 10, 2005 9:36 AM
  Subject: Re: Partial-Birth Abortion Ban Act

  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 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

    ----- Original Message ----- 
    From: "JFN" <jfnbl at>
    To: <CONLAWPROF at>
    Cc: <CONLAWPROF at>
    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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