Partial-Birth Abortion Ban Act

Bernard Bell bbell at
Tue Oct 11 13:35:08 PDT 2005

    Below are some ruminations that I just attach as a response to the last email in this thread.  (As background I should say that I generally tend to favor a fairly expansive view of Congress' reach under the Commerce Clause power.)
	It seems to me that the provision of a service for a fee is economic activity (but you all have had a vigorous debate about that), but I wonder if the provision of services for women who wish to terminate their pregnancies is intrastate, and thus immune from Commerce Clause regulation (at least to the extent that Congress purports to regulate the manner and circumstances in which physicians terminate pregnancies at the patient's request).  A commodity may be transported and sold in another state, a medical procedure cannot.  The entire course of conduct by the service provider, the person who is engaging in economic activity by providing a service for a fee, takes place within one state, at least ordinarily.  And given the licensing of the medical profession, it is particularly likely that the medical professionals entire provision of the service will take place in one state.  Patients can, of course, cross state lines to avail themselves of a medical professional in another state.  However, if the overwhelming percentage of patients for abortion-related services use medical professionals in their home state, should Congress have the power to regulate all provision of abortion related services, under the Commerce Clause, because a few patients cross interstate lines?  Couldn't Congress' legitimate interest in the interstate aspects of medical practice be addressed by a jurisdictional requirement, applying the federal statute to provision of services to patients who seek services from out of state?  Or is it sufficient under the Commerce Clause analysis that the instruments or pharmaceuticals used by medical practitioners providing abortion-related services quite likely travel interstate?  But that seems to me an extraordinarily weak reed on which to ground the power to regulate the manner of abortion a medical practitioner chooses for his/her patient.  Or perhaps because provision of medical services is a substantial segment of the national economy, any regulation of the provision of medical services falls within the Commerce Clause power, but such an argument seems to use the aggregation principle (that one looks at the effect of a category of transactions on the national ecomony in the aggregate) at much to general a level.



Bernard W. Bell
Associate Dean for Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at

>>> "Marty Lederman" <marty.lederman at> 10/11/05 08:32AM >>>
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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