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Abortion and Federalism


Mad Melancholic Feminista recently wrote to ask about my earlier post arguing that overturning Roe would not, in fact, “return the issue to the states.” Like many pro-choice activists, this is something she hears a lot (and not just from pro-lifers), but alas my first post didn’t really make the issues at stake very clear. (I have a tendency to assume that everybody is up on their commerce clause jurisprudence, because, really, what could be more exciting? Besides watching Home Improvement reruns in Swahili, I mean?)

I’ll be discussing federalism and the Rehnquist Court later this week, but before that a brief explanation of why it is clear than Congress can now regulate abortion. The key constitutional provision is the clause in Art. I, Section 8 which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Many of the most important struggles in American constitutionalism has been the question of what constitutes “commerce.” This became a particularly difficult question, because when the Constitution was ratified the U.S. was primarily rural, so it was possible to make reasonable distinctions between “commerce” between the states and merely local “manufacturing.” As the economy industrialized, these distinctions became harder, and more problematic to maintain.

During the 20th century, then, there was a revolution in Commerce clause jurisprudence. In less than 50 years, the Supreme Court went from arguing that importing sugar from the Dominican Republic, refining it in Massachusetts and selling it to Pennsylvania did not arguing that growing wheat beyond a federal quota for personal use did constitute interstate commerce. The latter case, Wickard v. Fliburn, remains good law. And until 1995, the Supreme Court did not strike down another act of Congress for exceeding Commerce Clause powers. Legislation you might not expect–such as the 1964 Civil Rights Act–was passed under the authority of the Commerce clause. (I actually agree with William Douglas that while Congress could have passed it under the Commerce clause, the Supreme Court should have acknowledged the power of Congress to do so under the 14th Amednment, and overturned the Civil Rights Cases. But that’s another post.)

Under this commerce clause jurisprudence, there is no question that Congress can pass legislation regulating abortion under the commerce clause. As many of you know, however, the Rehnquist Court has, for the first time since WWII, struck down legislation as transcending Commerce clause powers. In US v. Lopez, the Court (defensibly, it must be admitted) struck down a silly, pointlessly symbolic law regulating gun use around schools. In U.S. v. Morrison, a woman was raped by two members of the Virginia Tech football team. After VT was unable to implement even meagre punishments, the victim sued one of the rapists for civil damages under the Violence Against Women Act. The Court struck down the relevant provision of the Act, although Congress had compiled extensive data demonstrating that violence against women had deleterious effects on interstate commerce and states were not adequately policing it.

Does this “new federalism” mean that Congress would be prohibited from regulating abortion? Almost certainly not. As I mentioned, the Court has claimed that they are not overturning Wickard (and only Thomas has even broached the idea). Congress, they say, can regulate any economic activity (even if its interstate effects are indirect), but cannot regulate activities that merely have an indirect economic impact. The case that makes it clear that a law regulating or banning abortion would not be struck down on Commerce clause grounds is Gonzales v. Raich, decided this year. A 6-3 majority–including Scalia–argued that Congress had the authority to override state laws permitting marijuana to be grown for private use. Since getting an abortion–which generally involves paying someone for a service, and sometimes involves crossing state lines to do so–is far more plausibly called economic activity than growing pot in your backyard, there’s no chance that the Court would strike down a federal abortion law on these grounds. And, actually, it’s even less likely than Raich would indicate, because of the three most principled “new federalists” on the Court, only Thomas will be left at the end of the year. Scalia has made it quite clear that he cares more about conservative policy outcomes than federalism, and the chances that he will strike down any federal abortion law are zilch.

So, to return to my original point, anybody who says that overturning Roe will “return the issue to the states” doesn’t know what they’re talking about. We know the Republicans in Congress believe they have this authority, because they have in fact passed legislation (which is now likely to be upheld). And the Court will not strike it down on federalism grounds anytime in the near future. So overturning Roe will mean that abortion will dominate both state and federal politics. Do not be deceived, either, by people who say that since Congress probably doesn’t have the votes to ban abortion outright, there’s really nothing they can do. Even assuming they won’t pass an outright ban, there are all kinds of things they may well have the votes for, besides arbitrary bans on certain procedures: regulations of crossing state lines to procure abortions, requiring abortions to be approved by committees of doctors, nationwide parental consent laws, etc. etc. All of these things would severely restrict abortions for poor women, which would fit in perfectly with the de facto Republican position (i.e. “Abortion should be illegal, but not so illegal that if the daughter of a corporate vice-president can’t get a safe one if she gets knocked up.”)

So the stakes of the next two Supreme Court nominations are quite high. Not just because there may be another vote to overturn Roe, but because O’Connor’s replacement will be a swing vote to uphold all kinds of regulation that Congress could develop even under Roe. Abortion is not a “state” issue, and it’s not going to become a state issue. And these arguments are a subset of the bizarrely frequent “Overturning Roe is no big deal” arguments, which are wrong with varying degrees of silliness. Roe being overturned will 1)not “send the issue back to the states”, and 2)will have very, very bad consequences.

…update: Tim Burke notes in comments that he did not make the argument that overturning Roe wouldn’t be a big deal; I didn’t mean to attribute the argument to him specifically, but linked to my post because it contained a refutation of the generic argument. I also note that Burke has not been added to our blogroll, an oversight which is hereby corrected.

…update II: more here.

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