Partial-Birth Abortion Ban Act

[Frank Cross]

It seems obvious to me.  Because:
An abortion involves the exchange of money for services.
Holding a gun within a certain distance of a school does not involve any 
exchange of consideration.


At 08:23 PM 10/10/2005, Hamilton02 at aol.com wrote:
>This will not come as a shock, Marty, but we don't read the same cases in 
>the same way.  Raich explicitly provides that for the Commerce power to be 
>legitimate, that which is being regulated must be economic.  The Gun-Free 
>School Zones Act failed in Lopez in no small part, because the Court found 
>that that which was being regulated was noneconomic in nature, and refused 
>to "pile inference on inference."  Precisely the same reasoning in 
>Morrison.  In Raich, the Court, which is no longer even debating the 
>standard (so saying "rest in peace" seems a tad optimistic), stated in 
>plain English that that which is being regulated must be economic in 
>nature to justify Congress's exercise of power.  How in the world does the 
>jurisdictional element solve this particular problem?
>
>Setting aside one's views on Roe v. Wade, is the act of an abortion more 
>economic in nature than holding a gun within a certain distance of a 
>school or a violent act?  With all due respect to Sam, I don't think this 
>is obvious at all.
>
>
>Marci
>
>
>In a message dated 10/10/2005 4:13:10 P.M. Eastern Standard Time, 
>marty.lederman at comcast.net writes:
>Sam is correct, of course, that the provision of abortions is economic -- 
>much more so than possession of "medical" marijuana.  But, in any event, 
>it wouldn't matter even if the conduct were not, in some sense, "economic."
>
>True enough, I object to the Lopez "line" of cases (may they rest in 
>peace).  But even if I confine myself only to the Court's "doctrine," such 
>as it is (which is being very generous), then as long as there's an 
>"affecting interstate commerce" jurisdictional element (and sometimes even 
>when there's not -- see Raich), nothing in the Court's caselaw requires 
>that the activity being regulated be "economic."
>
>Perhaps, per Morrison, there would be a requirement that "violent criminal 
>conduct" be "economic" in order to sustain the law on an aggregation 
>theory.  529 U.S. at 617.  (And even so, we'd need an awfully broad notion 
>of what's "economic" -- see Perez.)  But even if there is such a doctrinal 
>requirement -- and again, but see Raich -- that wouldn't be relevant here 
>for two reasons (besides the fact that the activity is economic):
>
>(i)  This isn't "violent criminal conduct."
>
>AND
>
>(ii) With a jurisdictional element, you don't need an aggregation theory; 
>nor is there any "threshold" issue of whether the conduct is 
>"economic."  See, most obviously, the "felon-in-possession" statutes, such 
>as that upheld in Bass and Scarborough -- not to mention the Hobbs Act and 
>section 1962(c) of RICO (prohibiting the participation in an "enterprise" 
>through violence, if the enterprise (not the defendant's conduct) affects IC).
>
>
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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