Abortion and Commerce

Marty Lederman marty.lederman at comcast.net
Sun Apr 22 16:01:51 PDT 2007

I don't think it was a mistake for the Respondents not to raise the Commerce Clause question, for two reasons.  First, in the long run, abortion-rights advocates are likely better off if Congress has the power to regulate medical clinics (such as under the FACE Act, which virtually all courts have upheld), and so it would not behoove them to argue otherwise.  Second, the Commerce Clause argument is fairly frivolous, in my view -- again, for at least two reasons, both of which were true even before Raich.  First, virtually all abortions are performed in commercial medical establishments, and it's been well-established since at least the New Deal (confirmed in the AMK concurrence in Lopez) that Congress's power over commercial establishments is just about plenary (think of all the intricate OSHA regulations).  Second, in any event, the abortion law at issue here has a jurisdictional element that would have to be satisfied in every case, thereby, in my view, eliminating any question of its facial validity as Commerce legislation.  

Here's a bit I wrote on it on November 9th (http://www.scotusblog.com/movabletype/archives/2006/11/the_interstate.html), after the issue was raised at oral argument:

Analysis: The Interstate Commerce Question in the Abortion Cases
Posted by Marty Lederman at 05:59 AM

The federal statute at issue in the cases argued yesterday imposes criminal penalties on "[a]ny physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus."

In yesterday's second argument, Justice Stevens asked the Solicitor General whether the statute's "in or affecting interstate or foreign commerce" element would be satisfied where "the procedure is performed in a free clinic, as opposed to a profit organization." Justice Stevens went on to wonder how the Commerce Clause could "justify application [of the law] to a free clinic."

Solicitor General Clement responded that "I don't think the constitutionality in this facial challenge, where that hasn't been a feature of the challenge, turns on the answer to that question one way or another."

I think the SG's response was correct. As I argued in this brief two Terms ago (see pages 19-27), the presence of the jurisdictional element in the statute forecloses any question about whether the statute is facially constitutional on Commerce Clause grounds. Indeed, the jurisdictional element virtually guarantees that there couldn't be any applications beyond Congress's Article I power, either, because the element -- like numerous similar elements found throughout the U.S. Code -- should be construed to precisely track Congress's Commerce power. Thus, if an application is beyond Congress's Commerce power, then it won't be covered by the statute in the first instance.

OK, but in that case Justice Stevens's question could still arise in later cases, even if it is not implicated in these constitutional challenges: Would the statutory element be satisfied where "the procedure is performed in a free clinic, as opposed to a profit organization"? And the answer to that (statutory) question would depend, as Justice Stevens suggested, on the constitutional question of whether Congress can regulate abortions performed in free clinics.

The answer is that Congress does have the power to regulate free medical procedures, at least those performed in clinics. This is true for at least three, interrelated reasons.

First, the Court has never expressed any doubt about the constitutionality of statutes regulating conduct that has some direct relation to enterprises that are in or affect interstate commerce, even where the specific activity that is directly regulated is not commercial in character and there is no proof that such activity is in or affects commerce. So, for example, the Racketeer Influenced and Corrupt Organizations Act ("RICO") makes it unlawful for a person to participate in the conduct of an enterprise's affairs through a "pattern of racketeering activity"-which can consist exclusively of noneconomic, violent acts such as murder and kidnapping,-if the enterprise's activities (not necessarily the wrongdoer's) affect interstate or foreign commerce. 18 U.S.C. § 1962(c). In its numerous decisions addressing RICO, the Court has never hinted that there might be something constitutionally dubious about the fact that culpability turns on an attenuated, mediated nexus between the defendant's noneconomic, violent conduct and the interstate commerce affected by the conduit enterprise. Similarly, OSHA imposes all sorts of regulations on noneconomic aspects of workplaces, even those in which commercial transactions do not occur. (I listed some other examples in note 20 of my Cutter brief.)

Second, as Justice Stevens himself has recently explained for the Court, Congress's Commerce authority extends at the very least to the regulation of even nonprofit entities if they "purchase goods and services in competitive markets, offer their facilities to a variety of patrons, and derive revenues from a variety of sources, some of which are local and some out of State." Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 585-586 (1997). That almost certainly describes all, or virtually all, clinics and other facilities at which the abortions in question would take place.

Finally, even if the abortion in question were not peformed in a clinic meeting that description, the Court has held, most recently in Raich, 545 U.S. 1 (2005) (also written by Justice Stevens), that Congress can regulate purely intrastate activity that is not itself "commercial," i.e., not produced for sale -- such as the wholly intrastate possession of marijuana by individuals -- if it reasonably concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in a commodity. Presumably the same rationale would apply equally to federal regulation of an interstate market in a particular medical service.

This is not, of course, to say that the federal statute is constitutional, particularly in light of Stenberg. But there's no substantial Commerce Clause obstacle to the application of the statute, even in the case of a clinic that provides free abortions. 

[UPDATE: After I made this post, I noticed that my friends at Howe & Russell, and at the Stanford Law School, have filed an amicus brief on behalf of the California Medical Association, arguing that the "interstate commerce" element in the statute is unconstitutionally vague, i.e., that the commerce element makes the statute more constitutionally problematic than if Congress had simply applied the restriction to all abortions or to all clinics (as in the Freedom of Access to Clinic Entrances (FACE) Act). With all respect, I'm skeptical: The Court has indicated, in cases such as Lopez and Morrison, that a jurisdictional element such as this lessens potential constitutional concerns. The "in or affecting" commerce language of the abortion statute is derived from numerous federal statutes, such as the Sherman Antitrust Act and the felon-in-possession act, and the Court has construed such an element in numerous cases (e.g., Bass and Scarborough). But I'd encourage readers to read the CalMed Brief and to evaluate the arguments for themselves.] [FURTHER UPDATE: On further consideration, although it would not have been at all strange for the statute to require proof that the clinic, or facility, be "in" interstate commerce, or even that the abotion itself "affect" interstate commerce, it is a bit odd that the statutory element can be satisfied by proof that the abortion is "in" interstate commerce. What would that entail, exactly? It is possible, I suppose, that a free abortion might not be "in" commerce, and might not affect commerce, either. Thus, it is conceivable that some freely offered abortions might not fall within the terms of the statute -- even though Congress does have the power to reach such abortions. But as I mentioned above, that statutory question would only arise in rare applications, not in this facial challenge.] 

----- Original Message ----- 
From: "Ilya Somin" <isomin at gmu.edu>
To: "Lynne Henderson" <hendersl at ix.netcom.com>
Cc: "'Con Law Prof list'" <conlawprof at lists.ucla.edu>
Sent: Sunday, April 22, 2007 4:47 PM
Subject: Re: Con Law exam ideas after *Carhart?*

>I think that the Court ignored the federalism issue because it was not raised by Carhart, and had not been addressed by the district court and court of appeals. In retrospect (and even ex ante) failing to raise the issue was probably a mistake on Carhart's part (or rather that of his lawyers). 
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
> ----- Original Message -----
> From: Lynne Henderson <hendersl at ix.netcom.com>
> Date: Sunday, April 22, 2007 4:37 pm
> Subject: Con Law exam ideas after *Carhart?*
>> 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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