Con Law exam ideas after *Carhart?*

Earl Maltz emaltz at
Sun Apr 22 13:53:16 PDT 2007

With respect to the federal power question, I think that the abortion cases 
are much like Raich--that is, that abortions as a class generally involve 
commercial transactions (the payment of the providers for their services) 
and thus are regulable under the Court's current approach (but not that 
advocated generally by Justice Thomas).

At 01:37 PM 4/22/2007 -0700, Lynne Henderson wrote:
>Dear colleagues:
>        for several years, I had used the Partial Birth Abortion Act 
> for  Con Law I exam questions, since it so obviously brought together 
> strands from *Lopez/Morrison*, *Boerne*/*Garrett,* and SDP (and to some 
> extent the whole federalism debate)
>        I have finally read the opinions carefully and feel as if I can at 
> least discuss the case here.  I'm still not clear why the  Kennedy 
> opinion  just assumed Congress could pass, well, morals 
> legislation--except I assume the majority saw the "jurisdictional hook" 
> ("in or affecting interstate commerce") and left Federalism concerns 
> behind,.  (I understand why the respondents wouldn't want to get into 
> Congressional power issues for all kinds of reasons--what if the Court 
> had said section 5 gave Congress the power to regulate abortion under the 
> due process clause?   And the Commerce power has its good and bad 
> parts--though where the line should be drawn--but are we back to 
> *Champion v. Ames?*)
>         Given the Kennedy opinion, what's to prevent Congress from 
> prohibiting all second trimester abortions or abortions on moral grounds, 
> presumably if there were a life and maybe health exception?  Certainly I 
> agree that if gruesomeness and inhumanity are the criteria, all D&E 
> should be banned--how is it less inhumane to kill the fetus/baby in utero 
> ?  What about the health risks of the equivalent of a C-section or a 
> hysterectomy?  ?
>         as a pro-choice person with a respect for pro-life concerns,  I 
> am inclined to be more supportive of Justice thomas's and Justice 
> Scalia's position that it should be left to the states after this . . .Or 
> is it really limited by Justice Kennedy's honest revulsion about the 
> procedure he voiced in his *Stenberg* dissent?  Eg, he seems to  thin 
> kfor some (morally intuitive?) reason "first trimester" abortions are not 
> as morally offensive/damaging to t the state's continuing interest in 
> human life (are we back to trimesters?)  But how less respectful of human 
> dignity and life is such a procedure (beyond the immediate Plan B, 
> interuterine device,  or even RU 486 procedures)
>         And, I have to say, I am deeply troubled by the disappearance of 
> women as moral decision makers yet again (*Roe* not having much to say 
> about women) on the basis of very shaky assertions about "post abortion 
> syndrome"/psychological damage/failure to  want to know the full 
> dimensions of abortion,   I'm sorry, but lots of studies demonstrate that 
> we females are morally autonomous (see, eg. Carol gilligan's studies of 
> decision to have or not have an abortion) and, as a rape survivor who has 
> written I would do anything to avoid a pregnancy from rape, (see my essay 
> on Finnis in Cleveland-Marshall L. Rev. symposium),  I am appalled at the 
> loss once again of the lived realities of women so well spelled out in 
> the NARAL brief in *Thornburgh* and the majority's acceptance that since 
> a few/some women suffer grief/ depression (without more on how controlled 
> any studies are, it is hard to unpack that assertion--surely some women 
> regret it, but may have the regret and feelings of loss while still 
> knowing it was the best choice in the circumstances;  but depression has 
> many etiologies and is not necessarily tied only to one decision, etc.)
>         Because even before *Roe*, we had colleagues and students who had 
> had abortions, and certainly the odds are that many since *Roe* have 
> faced this decision or known people who did, I hope we can all be 
> respectful of points of view in discussion this issue.
>                   Sincerely
>              Lynne
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