The Volokh Conspiracy
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The U.S. of House of Representatives is preparing to consider a bill—the Pain-Capable Unborn Child Protection Act (PUCPA)—that would prohibit most abortions performed after 20 weeks from conception. Specifically, the bill would prohibit a doctor from performing (or attempting to perform) an abortion "if the probable post-fertilization age . . . of the unborn child is 20 weeks or greater." The bill further outlines how the "probable post-fertilization age" is to be determined and contains exceptions for cases of rape, incest involving minors, and threats to the mother's life.
Whether the PUCPA would pass muster under the Supreme Court's existing abortion jurisprudence is an open question. The relevant case law is a bit muddled. Under Casey, states are allowed to enact laws that restrict abortion and favor childbirth, but are not allowed to adopt measures that create an "undue burden" on a woman's exercise of her constitutional right to obtain an abortion. Under this standard, 24-hour waiting periods and prohibitions on specified procedures (e.g. "partial-birth abortion") have been upheld, but spousal notification provisions have been struck down. Should this sort of law reach the Supreme Court in the near future, the key question will be what sorts of restrictions on abortion Justice Kennedy is willing to tolerate.
Whether it would constitute an "undue burden" to prohibit abortion after 20 weeks is only one of the constitutional questions about PUCPA. Another is whether the federal government has anything to say about the matter at all. For even if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure. The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it's a matter generally left to the states.
PUCPA's authors have purported to address this constitutional concern by citing potential sources of constitutional authority. Among the Act's findings is the following:
Congress has authority to extend protection to pain-capable unborn children under the Supreme Court's Commerce Clause precedents and under the Constitution's grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.
These findings suggest PUCPA's sponsors have at least thought about the constitutional basis for the legislation. Unfortunately, they have not thought about the question enough, for neither the Commerce Clause nor the 14th Amendment provides authority for this legislation.
The Commerce Clause—specifically, the power to "regulate commerce . . . among the several states" is used by Congress as something of a catch-all justification for all manner of federal laws. So it's understandable why members of Congress would invoke it here. Yet as the Supreme Court has reaffirmed on multiple occasions, including in NFIB v. Sebelius, it is not a power without limits. It is one thing to use the commerce power to regulate economic activity, or control a significant industry, quite another to limit a controversial medical procedure.
Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce "among the several states." As Glenn Reynolds notes, "the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power." For this reason, conservative Republicans who urge courts to respect the limits on federal power—and who argued the individual mandate exceeded the scope of Congress' Commerce Clause power—should be embarrassed to support the invocation of commerce here.
Unlike the prohibition on the possession and use of marijuana upheld in Gonzales v. Raich, PUCPA is not part of a broader economic regulatory scheme, nor is it "necessary and proper" to facilitate the execution of other, economically oriented regulations. Further, unlike the federal partial-birth ban, PUCPA lacks a jurisdictional element that would confine its reach to those instances of abortion clearly within the scope of the Commerce Power. A jurisdictional element does not guarantee a statute's constitutionality, for reasons I discussed in this post about the federal Hate Crime statute. Yet such provisions can insulate a statute from a facial attack and give courts an easy way to construe a statute narrowly so as to preserve its constitutionality (as I discussed here).
The attempt to justify PUCPA under the 14th Amendment is not much better. My friend Ramesh Ponnuru argues that federal abortion regulations are permissible efforts to ensure "equal protection." Writes Ponnuru: "If a state does not offer [equal] protection to persons, Congress may intervene either by forcing states to perform this duty or by stepping in itself." Not really, at least not where protected classes are not involved. Further, remedial legislation under the 14th Amendment must focus on state actors. This is but one of the reasons the Supreme Court struck down portions of the Violence Against Women Act (VAWA) in U.S. v. Morrison, a decision most conservatives cheer.
Relevant legal questions—how to define murder, when to excuse the taking of life as defensible or otherwise permissible, even defining what constitutes the end-of-life for medical and other purposes—have always been matters of state law. Drawing such lines necessarily involves drawing distinctions that will please some and offend others, but that hardly creates an equal protection problem, let alone justify federal legislation. Again, where protected classes are not involved, a state's decision to draw different distinctions than would the federal government, even on matters involving life and death, is insufficient to justify a federal law.
On Twitter, John McCormack posed this hypothetical: "State protects the life of a 23-week old child from being murdered if born alive but not if unborn." Would this not be a violation of equal protection? No more than other state laws that similarly distinguish permissible from impermissible killing based upon "geography" or other contextual facts. In this regard, state laws failing to regulate abortion as much as Congress might like are really no different than state laws allowing lethal self-defense in the home or doctor-assisted suicide.
Whether or not to prohibit abortion 20 weeks after conception is not a question the federal government is empowered to address. Under our constitutional structure, such questions are the province of the states.
[Note: I've edited this post since initial publication to clarify the discussion of U.S. v. Morrison.]