Partial-Birth Abortion Ban Act

[Samuel Bagenstos]

Isn't it the performance of a medical procedure for pay?  What's noneconomic about that?

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Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> <Hamilton02 at aol.com> 10/10/2005 2:16 PM >>>
 
I understand that Marty objects to the Lopez line of cases, but they are  the 
law, and unlikely to be altered with the newly configured court.  I  wonder 
about his analysis -- if the standard is that there must be a substantial  
effect on commerce, a court trying to assess aggregation would  not just have to 
determine numbers of cases, but also whether each case  has more than a de 
minimis effect.  I suppose this latter points  depends on whether one reads the 
reference to Wickard in Lopez as strong support  for both aggregation *and* 
aggregation of de minimis impact.  Or whether  the endorsement of Wickard stands 
for a weaker proposition.
 
Even so, the analysis of *whether* that which is being regulated is  
economic, per Lopez, Morrison, and most recently Raich, is a threshold  issue.  No 
amount of aggregation of the noneconomic will amount  to any effect on commerce, 
let alone a substantial effect.
 
So my question is what is the economic element being regulated by the  
Partial-Birth Abortion Ban Act?
 
Marci
 
In a message dated 10/10/2005 11:43:55 A.M. Eastern Standard Time,  
marty.lederman at comcast.net writes:

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 aol.com_ (mailto:Hamilton02 at aol.com)  
To: _marty.lederman at comcast.net_ (mailto:marty.lederman at comcast.net)  ; 
_CONLAWPROF at lists.ucla.edu_ (mailto:CONLAWPROF at lists.ucla.edu)  ; 
_jfnbl at earthlink.com_ (mailto:jfnbl at earthlink.com)  
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?  
 
Marci