Partial-Birth Abortion Ban Act

[Edward A Hartnett]

How do those on the list who find the provision of abortions 
"non-economic" distinguish FACE?  Or is the argument that FACE is also 
beyond Congressional power under the commerce clause?

Ed Hartnett
Seton Hall 




<srbagenstos at wulaw.wustl.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
10/11/2005 07:46 AM

To
"Elizabeth Dale" <edale1 at bellsouth.net>, <Hamilton02 at aol.com>, 
<marty.lederman at comcast.net>, <jfnbl at earthlink.com>, 
<CONLAWPROF at lists.ucla.edu>, <crossf at mail.utexas.edu>
cc

Subject
RE: Partial-Birth Abortion Ban Act






Is this meant to be an argument independent of the Roe/Casey right to 
privacy?  That is, if PBABA doesn't violate Casey, do you think it would 
nonetheless be improper Commerce Clause legislation?

-----Original Message-----

From:  "Elizabeth Dale" <edale1 at bellsouth.net>
Subj:  RE: Partial-Birth Abortion Ban Act
Date:  Mon Oct 10, 2005 10:31 pm
Size:  3K
To:  "'Samuel Bagenstos'" 
<srbagenstos at wulaw.wustl.edu>,<Hamilton02 at aol.com>,<marty.lederman at comcast.net>,<jfnbl at earthlink.com>,<CONLAWPROF at lists.ucla.edu>,<crossf at mail.utexas.edu>

It seems like only yesterday that I was grumbling to someone of list that 
I
was getting tired of writing in defense of abortion. Oh well, so much for
that.

Isn't Marci right that there is a difference between abortion, which
implicates a constitutionally protected right to privacy, and medical
marijuana? Both are medical in some sense of the term, both involve 
economic
exchange, but one implicates a protected zone of privacy that is generally
granted constitutional protection while the other involves conduct (the
taking of drugs) that is otherwise regulated and, in the case of this
particular drug, criminalized.

Even assuming a spectrum of commerce clause opinions that includes Raich
might logically be stretched to reach the regulation of abortion, the fact
remains that in making that stretch you would have to pick up some
additional constitutional baggage that Raich does not have. I'd probably
ground an argument against treating an abortion case as if it were 
governed
by Raich on footnote 4, but I realize Marci is probably not relying on
Carolene Products. Either way you slice it, the fact remains that as it
currently stands, abortion is not just any other medical procedure, and so
it is not simply an economic transaction subject to commerce clause
regulation.


Elizabeth Dale

Associate Professor, US Legal History, Department of History,
Affiliate Professor of Legal History, Levin College of Law

University of Florida
PO Box 17320
Gainesville, Florida 32611

edale at history.ufl.edu
http://plaza.ufl.edu/edale
352-393-0271 ex 262


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2005 9:54 PM
To: Hamilton02 at aol.com; marty.lederman at comcast.net; jfnbl at earthlink.com;
CONLAWPROF at lists.ucla.edu; crossf at mail.utexas.edu
Subject: Re: Partial-Birth Abortion Ban Act

I'm sorry, Marci, but I don't understand what you're saying.  I think the
issue is straightforward:  Congress can prohibit some kinds of medical
procedures because if they were allowed they would be economic conduct 
that
would substantially affect interstate commerce.  Congress's power doesn't 
go
away because its regulations are effective.

====================================
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> 10/10/05 8:44 PM >>>

So if abortion were illegal, and a woman were not paying for it, it would
be beyond the power of Congress to regulate, but because it is
constitutionally protected, and therefore a fee can be charged, it is 
within
the power of Congress to regulate?  Seems ironic to me.

Marci



In a message dated 10/10/2005 9:41:11 P.M. Eastern Standard Time,
crossf at mail.utexas.edu writes:

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.





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