It must be said that the bottom-line argument of Glenn Reynolds’s op-ed is correct: Congress should not pass a statute banning abortion after 20 weeks, and indeed should not be regulating abortion. Alas, much of his defense of the law is as shaky as you would expect from someone who threatened that if Democrats had the temerity to criticize judges who believed that the ACA was unconstitutional Congress might “revist” the possibility of passing anti-abortion statutes that it had already passed and had upheld by the Supreme Court. For example:
One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well— Americans are much more supportive of early abortionsthan late-term abortions — and would still leave the United States with more-liberal abortion laws than nearly all of Europe.
This point about Europe’s allegedly more restrictive abortion laws is a common one, and it’s wrong. You can’t just look at the thresholds beyond which greater nominal restrictions apply to abortion in isolation. First of all, to make the effect of term restrictions in the U.S. even remotely comparable to those in Europe you would have to repeal the Hyde Amendment and have every state accept the Medicaid expansion. You would also have to repeal arbitrary state laws making the operation of abortion clinics difficult. And, finally, the relevant European laws generally don’t ban abortion after 12 weeks; they permit them in cases of threats to the life or health of the mother. Just looking at the statute books tells you very little about how these exemptions are applied in practice, and there’s evidently a major difference between how such exceptions will be interpreted by doctors in France and in Alabama.
As I’m sure you’ve already predicted, Reynolds reaches the right conclusion in this case for the wrong reason — namely, that he’d like to restore unworkable Gilded Age understandings of the federal power to regulate interstate commerce:
It’s possible, of course, that the Supreme Court would uphold regulation of abortion under the clause. In the past, it has, absurdly, upheld federal commerce power to punish a farmer for growing too much wheat on his own land, to feed to his own family and livestock, on the ground that if he didn’t grow his own he would be forced to buy the wheat on the open market, which would drive up prices and thus affect interstate commerce.
Wickard v. Filburn was, of course, correct. The regulations in question dealt with collective action problems of the kind the commerce and necessary and proper clauses were designed to address: namely, that individually rational decisions by farmers to grow as much as possible had the collectively harmful effects of lowering prices and degrading the quality of land. Filburn’s exceeding his surplus was inconsistent with both goals, and while of course no one farmer’s actions can affect wheat prices without being able to regulate individual actions it would be impossible to address the problems Congress identified with interstate commodity markets. One can agree or disagree with the wisdom of the policy, but it is permitted by the Constitution.
Still, in this case the appropriate precedent isn’t so much Wickard as Katzenbach v. McClung. Abortion clinics are at least as engaged in interstate commerce as Ollie’s Barbecue was. If Reynolds believes that the Civil Rights Act of 1964 is unconstitutional, he should say so. For those of us who aren’t crackpots, this is an easy case. The proposed abortion ban is terrible public policy and is also unconstitutional, but it is not unconstitutional because it exceeds the power of Congress to regulate interstate commerce.
With the bar set that low — and with liberal abortion-rights justices being fans of broad government power, while conservative limited-government justices oppose abortion — there’s a good chance that the law would pass Supreme Court scrutiny, whether it really ought to or not.
This is a very odd formulation. It is true, for the reasons I’ve stated, that none of the liberal justices would be likely to find that the statute exceeds the federal commerce power, but since this statute is straightforwardly inconsistent with Casey all of the liberal justices would find that it violates the Fifth Amendment, so it’s beside the point. There’s no both-sides-do-itism here; if the statute is upheld, it would be because 5 justices who sporadically pretend to care about federalism don’t really. (In Justice Scalia’s case, there’s no doubt at all — his interest in federalism ends when there’s any clash with his policy preferences.)
But the fact that nobody really cares about federalism shouldn’t be news. The fact that House Republicans have already passed a nearly identical bill once and probably will again should make this point abundantly clear.