Partial-Birth Abortion Ban Act

[srbagenstos at wulaw.wustl.edu]

I think this makes things needlessly complicated.  The argument isn't that services are "commerce," but that services are economic activities with a substantial effect on commerce.  It's the mirror-image of Darby or Jones & Laughlin -- there intrastate employment had a substantial effect on interstate commerce, here intrastate services have a substantial effect on interstate commerce.

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

From:  "Bernard Bell" <bbell at kinoy.rutgers.edu>
Subj:  Re: Partial-Birth Abortion Ban Act
Date:  Tue Oct 11, 2005 4:35 pm
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To:  <Hamilton02 at aol.com>,<marty.lederman at comcast.net>,<conlawprof-bounces at lists.ucla.edu>, <hartneed at shu.edu>,<srbagenstos at wulaw.wustl.edu>
cc:  <CONLAWPROF at lists.ucla.edu>

    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 anothe!
 r 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 e!
 conomy, any regulation of the provision of medical services falls with
in 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.

Regards,

Bernie

Bernard W. Bell
Associate Dean for Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark

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