We're Doctors. How Can We Be Engaged in Commerce?


The main argument against the federal "partial birth" abortion ban that the Supreme Court yesterday agreed to consider is the absence of an exception for situations where the targeted method is necessary to preserve the mother's health. One of the congressional findings in the statute asserts that "partial-birth abortion is never medically indicated to preserve the health of the mother." Yet the statute does provide an exception for "partial birth" abortions (a.k.a. intact dilation and extraction, or D&X) deemed necessary to save the mother's life.

I assume the statute was written this way to give the Supreme Court an opportunity to reconsider its position that the Constitution requires laws restricting abortion to include a health exception, which abortion opponents view as a loophole so big that it negates such legislation. But it's hard to see how it could be true that D&X abortions are sometimes necessary to save the mother's life yet never necessary to preserve her health.

The law's opponents cite such medically dubious judgments as evidence that Congress didn't know what it was doing when it passed the ban. (Since when has that been a fatal defect in federal legislation?) "The facts at issue here," say the plaintiffs, "involve the current state of medicine, physicians' testimony about patients they have cared for, medical conditions they have treated, and the impact of abortion techniques on the health of these patients." They add that Congress has no "particular expertise in the area of medicine, as it does in the area of nationwide economic regulatory schemes."

According to Congress, of course, the abortion law is a "nationwide economic regulatory scheme," authorized by its constitutional power to "regulate Commerce…among the several States." The law ostensibly covers D&X abortions "in or affecting interstate or foreign commerce," which is boilerplate meant to cover all such abortions. I suspect most of the law's opponents never had a problem with Congress' ridiculously broad reading of the Commerce Clause until it implicated their pet issue. Likewise, supporters of Roe v. Wade, which federalized the abortion controversy, cannot credibly complain that regulation of the procedure is none of Congress' business and should be left to the states.