Partial-Birth Abortion Ban Act

Marty Lederman marty.lederman at
Tue Oct 11 05:32:02 PDT 2005

What about OSHA?  RICO?
  ----- Original Message ----- 
  From: Hamilton02 at 
  To: hartneed at ; srbagenstos at 
  Cc: CONLAWPROF at ; conlawprof-bounces at ; crossf at ; edale1 at ; jfnbl at ; marty.lederman at 
  Sent: Tuesday, October 11, 2005 8:23 AM
  Subject: Re: Partial-Birth Abortion Ban Act

  Yes, I would say that FACE is also beyond Congressional power under the commerce clause.  


  In a message dated 10/11/2005 8:05:06 A.M. Eastern Standard Time, hartneed at writes:
    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> 
          Sent by: conlawprof-bounces at 
          10/11/2005 07:46 AM 
         To "Elizabeth Dale" <edale1 at>, <Hamilton02 at>, <marty.lederman at>, <jfnbl at>, <CONLAWPROF at>, <crossf at>  
                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>
    Subj:  RE: Partial-Birth Abortion Ban Act
    Date:  Mon Oct 10, 2005 10:31 pm
    Size:  3K
    To:  "'Samuel Bagenstos'" <srbagenstos at>,<Hamilton02 at>,<marty.lederman at>,<jfnbl at>,<CONLAWPROF at>,<crossf at>

    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

    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

    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
    352-393-0271 ex 262

    -----Original Message-----
    From: conlawprof-bounces at
    [mailto:conlawprof-bounces at] On Behalf Of Samuel Bagenstos
    Sent: Monday, October 10, 2005 9:54 PM
    To: Hamilton02 at; marty.lederman at; jfnbl at;
    CONLAWPROF at; crossf at
    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
    Personal Web Page:
    Disability Law Blog:

    >>> <Hamilton02 at> 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.


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