Apologies, if necessary, to Patterico and xrlq. I still think they're arguing at cross-purposes (see below), but I've been wrong before.
I happen to agree with Patterico's general analysis of the Partial-Birth Ban -- that it is a clear challenge to the Supreme Court to respect acts of Congress. Patterico despairs that the same decision as Casey will occur (unconstitutional 5-4). I disagree and think the Court will rule narrowly the other way. The difference this time is Congress, and a new set of facts. Congress is pointing out quite clearly that they are, indeed, the US Congress, and they have certain rights, and among these are the sole Federal power to legislate. Further, they are doing so after long debate and investigation, and their legislation, barring significant constitutional issues, requires deferrence.
I happen to think that Scalia’s dissent (quoted by Patterico) in Casey is not particularly useful, as he was arguing abortion as a whole, not a particular and presumably replaceable late-term procedure. His dissent in Stenberg is more relevant, but here Scalia is still mostly arguing Casey. Further, he doesn’t have the critical fact that he now has: Congress has acted, in a limited way, against a particular procedure that in no way impacts the general right to abortion, as other procedures are available in every instance.
The issue of abortion has, until now, been absent any Federal legislation of any import -- likely due to xrlq's Federalist argument. Into this vacuum the Supreme Court (foolishly) found it necessary to tred. [Insert long rehash of old issues.] In doing so, the Court, however, has presumptively nationalized the issue, and created such common interstate expectations that it is impossible for one or several states to effectively regulate abortions without running afoul of an impossible gamut of objections, ranging from stare decisis to "privileges and immunities." For the Court now to assert State's Rights would be profoundly ironic.
This thing has festered to the point that every sitting Justice has been confirmed in the light of Roe v Wade. Roe, a poorly argued hand-wave now largely superceded by the liberty argument of Casey, placed profound limits on legislative authority over abortion. Most relevantly Roe stated:
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation....Casey, which refounded the abortion right on the basis of personal Liberty, and defended the results of Roe on the basis of stare decisis, added this argument:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when it is necessary to preserve the life or health of the mother.
A comparison between Roe and two decisional lines of comparable significance - the line identified with Lochner v. New York, 198 U.S. 45 , and the line that began with Plessy v. Ferguson, 163 U.S. 537 - confirms the result reached here. Those lines were overruled ... on the basis of facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions.Now, the Congress has acted, and asserts that there is no medical justification for any reason for a procedure that, itself, blurs the demarcation of birth identified in Roe. It does not bar other procedures that might be employed at that point to ensure the health of the mother, and even allows the barred procedure in cases of clear danger to the mother's life, erring on the side of caution. In doing so, the Congress asserts that it has met the test of Casey and stare decisis -- things have changed, and the procedure is now know to be medically unnecessary, and is therefore a permissible regulation.
Nice post. No apologies necessary.
Obviously, I disagree with your argument that the statute will be upheld. I think the new language may -- *may* -- address the "undue burden" issue, but not the "health of the mother" issue. But we'll see. I have a $2 bet with a friend who is dead convinced that this will be upheld. (It's double-or-nothing on a previous $1 bet I won with him, re whether McClintock would release his voters to vote for Arnold).
I continue to think that Scalia's dissent in Casey is "useful" -- if you accept his reasoning. Because if you do, there are no constitutional issues here (other than possibly the Commerce Clause, as Xrlq has argued).
Nice job on the blog lately. Interesting stuff.
Posted by: Patterico at October 23, 2003 09:18 AM"For the Court now to assert State's Rights would be profoundly ironic."
Not really, as "states' rights" is a bit of a misnomer. The federalist argument is that whatever abortion regulations are allowed, they must be done at the state level. It is silent as to how much abortion can be regulated at any level.
On the flip side, Roe was neither a federalist nor an anti-federalist ruling. It sharply limited the power of any government, including the states, to regulate abortion. It did not do this on the theory that abortion regulations were up to Congress. [By contrast, consider the numerous state laws that have been struck down on the grounds that they unduly burden interstate commerce.]
Posted by: Xrlq at October 24, 2003 02:02 PM"State's rights" is, of course, the popular term for states retaining the powers that were reserved by them under the Constitution. Once upon a time, this was assumed to be all powers not expressly granted to the federal government (see Amdmt 10). Since about 1937, this has changed, and the Supreme Court has routinely deferred to Federal encroachment here. As a result, 10th Amendment claims are routinely discarded by federal Courts unless there is utterly no way for even the most inventive federal lawyer to invoke some federal power or emanation of one. I do not advocate this, I merely observe it. Only recently has the Court even begun to whittle back on this.
My assertion is that the Court has, in its 30 years of pre-emptive abortion law eliminated the practical possibility of state legislative action. The States may titularly retain the power, but Casey, in particular, will prevent any effective use of that power.
The particular finding in Casey that causes me to believe this -- point (e) in the majority's summary -- regarding invested expectations, prevents nearly any substantive difference among states on the abortion question. The Casey finding requires that a pregnant woman find appreciably the same abortion regime in each and every state. The only way to achieve uniform regulation is for Congress (or the Court) to act.
This means that regulation of abortion is now a federal power, courtesy of the same Supreme Court that found the "right" in the Constitution in the first place. For all intents and purposes, the Court has made Abortion one of the Privileges that the 14th Amendment talks about. And, therefore, federally enforceable.
There is no way, utterly no way, that a return to the pre-Roe state-law abortion regime is possbile. That is as dead as Lochner. An advocate (or Justice) that opposes, or wants to limit, abortion and does not recognize this critical fact is being at best counterproductive. State power over abortion is a dead as Caeser.
Posted by: Kevin Murphy at October 24, 2003 05:22 PMI don't understand how the federal government has the authority to regulate abortion? It definitely does not get the power from the commerce clause. So where does it get that power?
Posted by: madie at November 16, 2003 05:37 PMThe Commerce Clause, regardless of what I think, has been interpreted fairly broadly. For example, the Feds CAN and DO regulate access to abortion clinics. The argument is that abortion services ARE commerce, and that there is considerable interstate travel to obtain these services. In the past, when abortion was illegal in some states, there was a great deal of interstate travel to obtain abortions. Calling this "regulation of interstate commerce" is not all that great a stretch. Certainly no further than the clinic anti-demonstration laws.
Recent decisions regarding the 10th Amendment and striking down federal regulations have had to do with things that are CLEARLY unrelated to interstate commerce -- or indeed, commerce of any kind (e.g. rape, guns near schools, etc).
Note that, if they wanted to, the could pass a law that withheld funding for all heath services from any state that didn't go along, and THAT would be just fine according to the courts.
Claimining that abortion "substantially affects" interstate commerce seems too much of a stretch. Abortion affects intererstate commerce as much as guns affect interstate commerce. The court in Lopez held that just because guns may travel between the states does not in any way change the fact that gun control is generally w/in the purview of the states. Similarly, the mere possibility that the mere possibility that some may have to travel interstate does not seem to bring abortion regulation w/in the purview of the federal govt.
Posted by: madie at November 17, 2003 12:33 PM