Abortion and Commerce

[Ilya Somin]

These are interesting points. But I disagree with them.

Regarding the point about the interests of  prochoice advocates, I suspect that they have a greater interest in preventing Congress from banning various types of abortions entirely than they do in legislation such as FACE (especially since truly severe harassment and especially violent harrassment is already illegal under state law). 

Regarding the second point, I am far from convinced that the argument is "frivolous," especially since at least 4 Supreme Court justices (Scalia and THomas in their concurring opinion in Carhart; Ginsburg and Stevens in the oral argument) have suggested that they think it isn't in at least some contexts.

On the jurisdictional element, while it may prevent a facial challenge, it would not prevent "as applied" challenges, and these could potentially invalidate a high percentage of real-world challenges to the legislation. At the very least, they would make enforcement of the statute far more costly to the government and therefore less likely to occur in the first place. 

Finally, it is of course true that the post-New Deal cases give Congress nearly plenary power to regulate all "commercial activity." I think those cases are profoundly wrong. More important than my view, however, is the possibility that the Supreme Court itself  is uncomofortable with some of their handiwork in Raich and might be willing to cut back on it  (even if not as far as I might want to). There are many ways that they can do so while still leaving the lion's share of post-New Deal regulatory legislation intact.

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: Marty Lederman <marty.lederman at comcast.net>
Date: Sunday, April 22, 2007 7:01 pm
Subject: Abortion and Commerce

> 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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