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.

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  1. Any chance this case will result in eminent domain abuse where local governments are going to evict a fetus then give the rights to the woman’s womb to whoever will pay the highest tax rate for a surrogate mother?

  2. “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.”

    That’s not obviously true to me as a constitutional matter: Surely we can imagine plenty of cases where a state law violates some constitutional right of individuals, but where the general subject matter is well outside of Congress’ enumerated powers. We can, for instance, think state sodomy laws are invalid without ceding that Congress can pass laws on sexual behavior just because that subject has now been “federalized.”

  3. Congress has no “particular expertise in the area of medicine, as it does in the area of nationwide economic regulatory schemes.”

    Anyone who thinks Congress has expertise in anything economic needs a brain transplant.

  4. Very well said Mr. Sanchez. Just because state laws can be invalidated at the federal level doesn’t mean that invalidation makes the subject regualtable by congress.

  5. Julian,

    You may be right in the abstract, but Jacob is specifically referring to Roe v. Wade, where the Supreme Court pulled a right to privacy out of thin air. That right only applies to abortion. If it were not a special-case right, then a person would be free to grow marijuana and smoke it.

    Jacob is pointing out the inconsistency of people who have welcomed a federal power grab to regulate abortion opposing a federal power grab to regulate abortion. The first grab was by the Supreme Court and gave the pro-choice people what they wanted. The second is an attempt of Congress and may give anti-partial-birth abortion what they want.

    It’s all well and good to be pro-choice. I don’t even particularly fault the end-justifies-the-means people who are happy with Roe v. Wade. However, one of the objections to the end-justifies-the-means is that you become a hypocrite when you object to your opponents doing the same thing.


    It doesn’t appear that Jacob said “just because …” though. I absolutely agree with you and Jacob that such reasoning (“Just because state laws can be invalidated … [makes it something that can be regulated]”), but the inconsistency of supporting a power grab when it’s in your favor and opposing one when it’s goes against you is still there.

  6. In terms of constitutional law, Julian is right (although it’s hard to imagine Roe‘s defenders pressing an argument based on the enumerated powers doctrine). What I meant is that abortion rights supporters brought the current situation on themselves by federalizing the issue, inviting their opponents to look for a national solution instead of focusing on state legislatures. Politically speaking, it is hard to argue that abortion policy should be set in Washington when you like the result and in the states when you don’t.

  7. I agree that the Supreme Court pulled the privacy right out of thin air with a whole line of cases, but I don’t see how it follows that supporters thereby brought this issue under the reach of the Commerce Clause. In each of those cases, the issue was a state law and whether it complied with the Constitution. If that “federalizes” the issue, why do we all declaim Raich on this website? After all, haven’t there been innumerable times when marijuana smokers have “federalized” the issue by complaining to the Supreme Court that the state has violated their Fourth Amendment rights during arrest?

  8. Anon2 described Roe v. Wade this way: “the Supreme Court pulled a right to privacy out of thin air. That right only applies to abortion.”

    That’s not correct, is it? I thought the right to privacy was found by the Supremes when they were ruling on birth control. Right?

  9. power,

    As far as I know, nobody is claiming that supporters of Roe brought the issue under the commerce clause. What is being stated is that supporters of Roe who complain about the issue being brought under the commerce clause are being inconsistent if not actually hypocritical.

    I can’t speak for anyone else, but I don’t think that the commerce clause allows Congress to regulate doctors ability to perform abortions. I believe this regardless of what happened with Roe v. Wade. So there’s no way in hell that I believe that supporters of Roe, or anyone else for that matter, brought this issue under the commerce clause.

    However, Roe was a federal power grab by the Supreme Court. They had exactly the same amount of authority to prevent states from making abortion illegal as Congress has to make some abortions illegal-none. People who recognize that Roe was a federal power grab but think it was a good idea because it got them what they wanted should be understanding when their opponents try a federal power grab to get what they want. I disagree with Jacob, in that I think that politically, there’s very little liability to being inconsistent or even being a flat-out hypocrite. However, just because it may not hurt-or it may even pay-to be hypocritical doesn’t remove the hypocrisy.

    Personally, I was very happy for a while after Lopez, because I thought that the tide was finally turning on the commerce clause. I’ll be very glad if the Supreme Court eventually switches to a narrow interpretation of the commerce clause.


    I believe they’ve used privacy more often than just on abortion, but it’s still been used to get results, more than a matter of principle. If the judges didn’t want to force the states to allow abortion, they wouldn’t have found that imaginary right. Just because they might want to force the states on other issues doesn’t change that. That’s easy to see with my example of a person who grows marijuana and consumes it himself.

  10. Anon2–

    I don’t see the hypocracy. The Supremes may have made a power play by deciding that it was a constitutional issue, but they didn’t make it a federal issue in the sense of declaring that abortion was an issue that fell within the purview of Congress. Rather, the Supremes asserted that what the States could do with respect to abortion had to balanced against the rights of individuals under the Constitution. Seems to me it’s still fair game to complain that Congress shouldn’t also get into the act, because abortion should be a state rather than a federal issue. (Now, if abortion rights supporters wanted Congress to enact laws further protecting abortion rights, and then complained that Congress can’t enact laws restriction abortion rights because of commerce clause limitations, that would (i) not surprise me in the least and (ii) be hypocritical indeed.)

  11. I wonder if the defenders of Roe v. Wade in this discussion would still be in favor of the Supreme Court controlling outcomes in this area, if the Supreme Court decided that protections for persons under Constitution extended to fetuses, and that meant that the states were obligated as a matter of equal protection to treat abortion as murder.

  12. I’m not sure I can buy the analytical distinction between the SCOTUS making something a matter of the federal constitution but leaving it as a matter that can’t be addressed by Congress, even though I’m sympathetic to the feeling.

    You see, SCOTUS is not the only branch tasked with defending the rights guaranteed by the federal Constitution. And since Roe conceded that there are competing rights at issue in abortion, I’m not so sure that a perfectly legitimate argument for Congress (if you accept the reasoning of Roe) wouldn’t be similar to what RC lays out: “We find that in order to balance and protect the rights identified in Roe properly, the following measures are necessary:…”

    Once SCOTUS says that an issue is controlled by the federal Constitution, the federal genie is out of the bottle. You’re right that it doesn’t fall under Commerce, but the 14th amendment also provides for Congressional remedies…

  13. Excellent point, Quasibill. I think you’re right–Congress could claim that they are acting under their authority to protect Consitutional rights.
    I wonder, though, whether that serves to federalize the individual’s constitutional rights, and not the countervailing state interest against which those rights are balanced? In other words, if Congress can rely on its federal power to protect Constitutional rights to enact laws protecting those rights, does it also have the power to enact laws curtailing those rights?
    To pick a non-abortion hypothetical–can Congress codify the minimum standard required for a search to be reasonable, setting the bar higher than SCOTUS has set it, and require all states to meet the new high bar? If so, can Congress enact a law that codifies the SCOTUS standard, and also forbid says no state can set its own bar for “reasonable” in a more restrictive way? (I don’t pretend to know the answer to this.)
    Of course, I realize that the pro-life side has advanced the proposition that that the unborn child also has Consitutional rights, which if accepted would put Congress right back in the game, regardless to the answer to my question.

  14. ?If the [Supreme Court Justices] didn’t want to force the states to allow abortion, they wouldn’t have found that imaginary right [the right to privacy].?

    But before Roe, the Supremes decided Griswold v. Connecticut, protecting the right of married women to use birth control. Later, in Roe, privacy protections were expanded to encompass abortion.

    The point is that the origin of Supreme Court rulings on a right to privacy was birth control, not abortion.

  15. Whenever I think of abortion as being a part of interstate commerce, I always picture a doctor performing the procedure in the back of a semi-truck that’s hauling along a freeway.

  16. Changing the topic a bit here, but for proponents of schemes including exceptions such as “life of the mother” or “health of the mother”, how exactly do such exceptions work? Who decides if there is a threat? How big does it need to be? What oversight is there? How do you keep these exceptions from swallowing the rule? In other words, what is to keep some abortion doctor from deciding “well, I believe nearly-banned procedure X is slightly less likely to injure the woman than legal procedure Y. Therefore, ‘health and life of the mother’ make X permissible in this case” for every woman who enters his office, thereby making the “ban” on X absolutely meaningless?

  17. quasibill,

    Let’s say Alaska outlaws printing presses. It goes to the Supreme Court. They say that the combination of the first amendment and the fourteenth amendment make Alaska’s printing press law unconstitutional. It does not immediately follow that Congress can then regulate printing presses.


    My point is that the right to privacy was invoked by the Supreme Court to get the decision they wanted. But you’re right and my original statement is wrong. How about the following:

    You may be right in the abstract, but Jacob is specifically referring to Roe v. Wade, where the Supreme Court pulled a right to privacy out of their little ideological compartment where they invoked it in a few cases in order to get the decision they wanted. That right only applies when they feel like it. If it were not a special-case right, then a person would be free to grow marijuana and smoke it.

    It doesn’t change my argument, but I’m glad you pointed out my error. It’s been a while since I looked at any of those cases and now’s probably a good time to refresh.

  18. well, chad, we could restrict the procedure to qualified hospitals and clinics. then we could establish a board of qualified obstetricians, with enough members and a sufficiently low quorum that it could be consulted and issue a decision quickly. when a doctor said, hey, my patient has preeclampsia and is in danger of going into a coma, and her (wanted) fetus is non-viable at 21 weeks, so let me do this procedure RIGHT NOW (and this is the very thing that has happened to someone I know). of course, such a system might in practice still be too slow-moving for the woman in that circumstance , putting her health and even life at risk. so maybe, just maybe, the doctor and the woman should be able to make this decision together. statistics are always difficult to gain/trust in charged circumstances like this, but all indications are that a tiny percentage of abortions are of this type, and among those, most are well before viability (or at least, reliable viability; surely at least some of the aborted fetuses are at the same stage as some other prematurely born infants who have subsequently survived) or are of acephalic fetuses or fetuses who suffer from birth defects guaranteed to be fatal within a few hours or days of birth. it seems ludicrous that the state should be able to compel you to bring such a pregnancy to term, suffer the pain of labor, and deliver an essentially stillborn child. difficulties obtaining this procedure have also led to the harrowing result of a woman whose baby died inside her at 30 weeks or so, and she was then unable to find anyone to remove it right away, and had to walk around, pregnant, with her dead baby floating inside her, for some time. if you’d ever been pregnant I think you might be able to comprehend the horror of that.

  19. or perhaps the short answer is, you’d have to trust women and their doctors not to make irrational, cruel decisions about abortion, sounds crazy, but it just might work.

  20. “Let’s say Alaska outlaws printing presses. It goes to the Supreme Court. They say that the combination of the first amendment and the fourteenth amendment make Alaska’s printing press law unconstitutional. It does not immediately follow that Congress can then regulate printing presses.”

    Not a very good analogy, because only the interests of one citizen (i.e., it’s a straight up citizen v. state case) are involved.

    How about this – SCOTUS says that Alaska’s libel laws are too broad and infringe on 1st Am. Does Congress have the power to pass a federal libel act to make the interaction between libel and 1st am explicit and uniform? Under the 14th (under current “incorporation” doctrine), it surely has a very strong argument, at the very least.

  21. I thought you were asking for an example that would show how the Supreme Court overturning a state law would not automatically entitle Congress to regulate. That’s why I tried to pick something that is cut-and-dried. If you’re instead asking if there’s ever a chance that a Supreme Court decision could in turn allow Congress to regulate an activity, then yes, I agree. The 14th is a big broad brush.

    It’s hard to tell with the new justices on board, but abusing the commerce clause had been such a tried and true practice that previously, that’s how the justices would have justified a decision they wanted carried forward. However, if the new justices are sufficiently opposed to commerce clause abuse to not use it to get their way, I’ll be a little surprised if they come out with a “right of privacy + 14th allows in Congressional oversight” argument. Such a ruling would make it harder for them to legislate from the bench in the future.

  22. I would argue that the main function of the Supreme Court and the judiciary generally ought to be defending citizens, especially targeted and unpopular minority groups, from impingements on their liberty by majorities (whether at the federal or state level). The other main function ought to be declaring unconstitutional federal laws that contravene Congress’ ennumerated powers. In this case, abortion, the law contradicts both personal liberty and Congress’ power.

    I’ll have to cede the point that ‘a right to privacy’ was pulled out of thin air by the Supreme Court in Griswold and Roe. But, there are plenty of such rights implicit in the 9th Amendment, and the right to liberty and pursuit of happiness ought to encompass personal privacy and autonomy in cases that don’t affect another living person. The Civil War and passage of the 14th Amendment settled the fact that the federal judiciary can, and should, strike down state laws that compromise our federal human rights doctrines, the privileges and immunities of American citizenship, whether or not a majority of a state’s population decides they’d rather criminalize abortion, gay sex, etc.

    States should be allowed to be laboratories of democracy in all areas of social policy that the 10th Amendment and the Constitution declare to be their sole purview, like medical regulation — but only insofar as that regulation does not unduly impinge on personal liberty. That’s my take.

  23. The pro-lifers have objected to the “health exception” on the grounds that various states have allowed – or been forced by courts to allow – psychological health to be taken into account. So, if a 9-months-minus-one day-pregnant lady gets a note from her psychologist saying that giving birth will put her at risk of feeling blue, the state has to OK crushing her “product-of-conception”‘s skull as its feet dangle out of the birth canal.

    Well, that’s the RoLers parade of horribles, anyway.

    As for Congress enforcing the Bill of Rights, the 14th Amendment reads:

    1…..No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.


    5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    If SCOTUS ever reversed Roe, a federal law outlawing or restricting abortion could be justified on this basis.


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