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Jacob Sullum explains how the Supreme Court's decison on partial-birth abortion mangled the arrangement of powers between Congress and the states.
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robc|4.25.07 @ 7:56AM|#
the Court should have been questioning Congress' authority to regulate the practice of medicine
Jacob,
They should have been, but its not the Courts job to bring it up. As your Thomas quote just before the part I quoted showed, that question wasnt before the court. Why not? Why didnt the lawyers argue it as an ICC case? It is because, in addition to supporting abortion they also support expansive federal government? Is it possible that that is even more important to them than PBA?
MJ|4.25.07 @ 8:19AM|#
I believe that the reason the abortion rights side did not bring up federalism arguments is that they have been arguing that state laws regulating abortion are impermissible because Roe and the subsequent SCOTUS abortion case law has effectively put abortion under the Federal government's bailiwick. They do not want to give away that argument when a state law comes up.
What mangled the arrrangement of powers was Roe, it is too late for pro-abortion side to bitch about the consequences of what they have wrought.
Le mot juste|4.25.07 @ 8:25AM|#
how the Supreme Court's decison on partial-birth abortion mangled
C\'est a dire|4.25.07 @ 8:26AM|#
mangled
MJ|4.25.07 @ 8:27AM|#
"But it opens the door to a wide variety of laws through which members of Congress can substitute their medical judgment for that of physicians throughout the country."
Abortion is a medical treatment which has as its main goal the destruction of an individual human life. Government at some level has (and must have) the legitimate authority to determine under what circumstances killing a human being is permissable or not.
D.A. Ridgely|4.25.07 @ 8:30AM|#
I largely concur with Mr. Sullum's analysis but would carry the argument further to note that the even more principled resolution would have been for the Court to acknowledge its own lack of constitutional authority and absence of medical expertise beginning with (actually before) Roe v. Wade.
The ethics of abortion and the constitutionality of federal involvement are or should be separate issues. However, for those who oppose abortion and have no qualms about the constitutional issues (as, indeed, those who favor broad abortion rights rarely do), Carhart represents a significant retreat from the Court's previously consistent rulings that virtually any threat to the health of the woman sufficed to preclude both federal and state regulation or prohibition. That, too, was a mangling of the arrangement of powers between the federal government and the states.
|4.25.07 @ 8:32AM|#
I agree with what MJ said, and further, I wonder what the difference was between the federal law and Nebraska's PBA ban struck down in Stenberg v Carhart.
It is a bit disingenuous for pro-choicers to work their darnedest to have federal courts strike down state bans, and then cry "this is a state issue!" when the feds do the same.
Grotius|4.25.07 @ 8:44AM|#
So when do we start to question whether the Supreme Court is indeed the final authority on what the Constitution says?
robc|4.25.07 @ 8:50AM|#
I wonder what the difference was between the federal law and Nebraska's PBA ban struck down in Stenberg v Carhart
The members of the Supreme Court.
stephen the goldberger|4.25.07 @ 9:08AM|#
Any possible argument against partial birth abortion bans as being unconstitutional since it involves congressional interference in medical practices is potentially trumped by the fact that the rights of the fetus are being violated. (in some people's minds)
If you think a partially born baby is entitled to the right to life, then the constitution allows for partial birth abortion bans.
|4.25.07 @ 9:37AM|#
MJ: Your argument will have some validity the day there is a federal murder statute or national medical licenses. Until then, pro and anti abortion people need to separate their emotional rhetoric from the issue of federalism. I agree with MJ that previous arguments about constitutional rights trump the ability to argue for states rights, but I'm pretty sure that the court can easily examine the issue sua sponte, i.e., if they wanted to.
Guy Montag|4.25.07 @ 9:42AM|#
Your argument will have some validity the day there is a federal murder statute
Isn't there one for murdering federal employees? Perhaps I am misremembering from a different era.
|4.25.07 @ 9:43AM|#
They should have been, but its not the Courts job to bring it up.
A court, especially THE Court, can bring up any damn thing it wants sua sponte. I would even argue that SCOTUS has an obligation to do so, given its role as, essentially a governance body rather than strictly a forum for resolving disputes.
|4.25.07 @ 9:59AM|#
Guy Montag: Perhaps there is a federal hook somewhere, like how bashing in a mailbox can supposedly get you sent to federal prison even though it's a basic vandalism charge. I don't think there is, but I really don't know the answer. RC Dean: I agree that the SCOTUS should look at issues sua sponte, especially issues that deal with the process of governance and issues that put the SCOTUS into what you rightly see as governance body mode.
|4.25.07 @ 10:12AM|#
Guy Montag | April 25, 2007, 9:42am | #
"Your argument will have some validity the day there is a federal murder statute."
Isn't there one for murdering federal employees? Perhaps I am misremembering from a different era.
============================================
This does suggest a novel way of protecting the unborn: draft them into "national service," and perhaps the pregnant women, too.
|4.25.07 @ 10:17AM|#
In the decision, the Justices said that they had a duty to provide independent review of the "findings" of Congress, even as they had a tradition of generally respecting them.
Too bad they didn't have that same zeal for "independent review," when the challenges to the Controlled Substances Act came before the court. The Congressional "findings," on which that legislation was based, were at least as bogus as the more contemporary assertion that medical schools do not teach the D&E procedure.
Dave W.|4.25.07 @ 10:31AM|#
I agree with Mr. Sullum that this law is not well supported by the Interstate Commerce Clause.
If the law limited its scope to people who crossed state lines to get their abortions, it would have been well supported by the Interstate Commerce Clause.
That is what Congress should have done if they wanted this law.
|4.25.07 @ 11:37AM|#
Instead of discussing the right to abortion, the Court should have been questioning Congress' authority to regulate the practice of medicine, which is equally hard to find in the Constitution.
Didn't the medical profession already invite congress into regulating the practice of medicine when it insisted on licensing, regulation of schools, the outlawing of certain other alternative medicines, etc?
How cute, now they're realizing that inviting government in is no longer in their benefit. Boo frigging hoo.
Robert|4.25.07 @ 11:38AM|#
If any of you would actually read the fucking statute, you'd see it applies only to persons "in or affecting interstate commerce". That is, if the trial court doesn't believe the abortionist was in or affecting interstate commerce, it's legal.
|4.25.07 @ 11:56AM|#
"Didn't the medical profession already invite congress into regulating the practice of medicine when it insisted on licensing, regulation of schools, the outlawing of certain other alternative medicines, etc?"
Medicine is regulated on a state level, the schools are accredited privately, and outlawing alternative medicines is a state job. The drug war and abortion are the areas where the federal government intrudes on medicine.
|4.25.07 @ 1:46PM|#
Robert,
Are you referring to the Commerce Clause or the Partial Birth Abortion Ban? If you mean the Commerce Clause, the SCOTUS gutted it in Wickard V. Filburn in 1942. Just about every dubious Commerce Clause ruling since has been predicated on that one case. This includes Roe v. Wade, the Controlled Substances Act, Raich V. Ashcroft and now this Federal power grab.
Deron|4.25.07 @ 3:57PM|#
I wish they had argued states right. It would have been appropriate.
The fact that it would be an about-face doesn't matter a bit to me. In the grand scheme of things states rights is a bigger deal than abortion in any case.
|4.25.07 @ 4:54PM|#
No way the pro-choice orgs are going to challenge it on federalism grounds, since doing so would also undermine the various federal laws which allow them to harass pro-life demonstrators (18 U.S.C. § 248 Freedom of Access to Clinic Entrances Act, etc).
Robert|4.25.07 @ 9:00PM|#
"Robert, Are you referring to the Commerce Clause or the Partial Birth Abortion Ban?"
The partial birth abortion ban. The wording is in the statute itself.
"If you mean the Commerce Clause, the SCOTUS gutted it in Wickard V. Filburn in 1942. Just about every dubious Commerce Clause ruling since has been predicated on that one case. This includes Roe v. Wade, the Controlled Substances Act, Raich V. Ashcroft and now this Federal power grab."
Then you haven't been keeping up. I know of at least two federal statues which apply specifically to persons or things "in or affecting interstate commerce". One of them is Al Gore Jr.'s Organ Transplantation Act's ban on organ sales, but only as applied where the sale is in or affects interstate commerce. The other is the partial birth abortion ban, which applies to persons "in or affecting interstate commerce" who perform the procedure.
As such, neither of these statutes, nor others so worded, rely on Wickard, and neither could be appealed on that basis either. They make the question of the effect on interstate commerce one for the trial judge or jury. Once that is established as a matter of fact, not law, it doesn't matter how the statute itself stands in relation to Wickard. The doctor involved either is in, or affects, interstate commerce, or does not -- as settled by the facts at the trial level.
I don't know how many other recent federal statutes have similar language, but I suspect a few, because Congress desired to keep the whole interstate commerce issue out of the appeals courts. Of course this was done much longer ago in such statutes as the Federal Food, Drug and Cosmetic Act.