Why "Partial Birth" Legislation Will Not Be Struck Down On Federalist Grounds

Since a couple of people have asked, I should probably say a little more than my flip response to Pithlord’s hope (and, at one time, prediction) that the federal “partial birth” legislation will not be overturned because it exceeds Congress’ Commerce Clause powers. The long version is here. The short version is that the Rehnquist Court’s Commerce Clause jurisprudence has made only very tentative steps (most of the federalism work has been done by its ridiculous “sovereign immunity” jurisprudence, which isn’t relevant to the case), and recent decisions make it clear that they’re not going to go far enough to strike down this legislation.

The Court’s decisions in Lopez and Morrison held that while Congress could, under the Commerce Clause, regulate economic activity, or activities that in the aggregate would “substantially affect” interstate commerce. Regulating possession of firearms around schools or creating a civil remedy in sexual assault cases were held to be neither commercial activities in themselves (which is obviously true) or part of a broader regulatory scheme to regulate substantial effects on interstate commerce (which is true of the first, more problematic with the second.) To strike down the abortion legislation, however, would not be an application but a significant expansion of this doctrine. Paying someone for an abortion (and because upwards of 90% of American counties don’t have an abortion provider, it’s not uncommon for this to be done by women from out of state) is, in itself, an economic activity. While the previous two decisions can be cabined in ways that don’t affect any major element of the modern regulatory state, claiming that regulating actual economic transactions is beyond Congress’ powers would have much broader effects if applied in a principled way–the Court’s decisions upholding the Civil Rights Act, for example, would become highly suspect.

In light of Raich, any chance that this kind of expansion of the court’s doctrines would happen has pretty much vanished. If the federal government can proscribe the use of marijuana grown legally purely for personal purposes, regulating a woman purchasing a medical service isn’t even a close case. Admittedly, judges do not always apply doctrines in a principled manner. But the Court’s more liberal members, as Raich, demonstrates, have been principled in upholding even substantively bad legislation. And one of the conservatives who would have to switch back compared the court’s previous decision striking down state “partial-birth” legislation to Dred Scott.

So, empirically, it’s clear that this legislation will not be ruled outside the bounds of Congressional powers. And, normatively, this is a good thing. Under modern economic conditions, getting the Court back into the business of making judgments about what commercial transactions have enough impact on interstate commerce is both unlikely to produce a coherent jurisprudence and likely to have very bad consequences. Madisonian separation of powers has been fairly effective at constraining the powers of Congress (indeed, Congress not being able to do enough has been a much more serious problem in American history than Congress overstepping its bounds.) The “partial birth” legislation should most certainly be ruled unconstitutional, but that’s because it’s an arbitrary restriction on a fundamental right, not because it’s beyond the powers of Congress.