November 27, 2006

No Pot, But Free Abortions

by PG

Volokh Conspirators Orin Kerr and Ilya Somin suggest that Raich makes it impossible to use the commerce clause's limitations to attack legislation like the ban on dilation & extraction abortions; even free abortions provided intrastate are blocked by that precedent because they use items that flow in interstate commerce. However, one should be cautious in claiming that Raich clearly precludes an interstate commerce clause-based declaration that the "partial birth" abortion ban is unconstitutional.

While the instruments for abortions flow in interstate commerce, the notion that abortions themselves, like marijuana, could enter interstate commerce is obviously silly. A purveyor of marijuana can guarantee that the person to whom he supplies pot is the end-user only if he watches her smoke up the whole batch in front of him, which I doubt is what Raich's suppliers did. When I visited San Francisco in early 2001, the back pages of alternative weeklies abounded with advertisements for medical marijuana, which gave me some sympathy to the idea that pot supposedly sold for medicinal purposes might well become recreational. Realistically, a thief could break into Raich's home, steal her supply and sell it across state lines. A purveyor of abortion procedures, on the other hand, can supply only the consumer in front of him; he can operate on only one patient at a time (although RU-486 would be more comparable to medical marijuana).

This distinction between instruments and end-products or services seems to me a meaningful one.

The government can regulate my harvesting wheat or cannabis because it affects interstate commerce in those products. But given that forceps, curettes and other tools of abortion are themselves legal, and it is only their employment in the dilation & extraction abortion procedure that the federal government has outlawed, free intrastate "partial birth" abortions may plausibly be excepted from the general PBA ban. If one follows the majority's rationale in Raich that the possibility of homegrown medical marijuana's slipping into interstate commerce is what allows the federal government to prevent it from being distributed, then a surgical procedure cannot be similarly construed as possibly slipping into interstate commerce. Physicians can require applicants for free abortions to produce proof of in-state residence; the less regulated pot market probably will not do so with its consumers.

To look back at Wickard, while physicians' giving away free abortions certainly would affect the market for abortion, that doesn't seem to be what Congress is doing with the PBA ban. There's no hint that the legislation is meant to keep the number or price of abortions at a certain level, nor does it seem particularly likely to do so. If later-term abortions become more dangerous (as forcing all women to get standard dilation & evacuation, which increases the chance of uterine perforation and infection, is likely to make such abortions*), this may incentivize women who fear fetal deformities or damage to their own health to abort earlier rather than waiting to find out whether their worries are justified.

The PBA ban is more similar to the provision struck down by Lopez; it bans an activity that is assumed to use articles passing in interstate commerce, regardless of whether the activity itself may "substantially affect" interstate commerce. Of course, unlike bringing guns to school or raping women, performing abortions normally is done for a fee and therefore is economic activity; again, free abortions probably do affect the general market for abortion. And the Court said that even Lopez's noneconomic activity could have been regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." However, the Gun-Free School Zones Act of 1990 was not a regulation of economic activity.

Similarly, no part of H. R. 760 treats abortion as an economic activity; all of its attention is on the immorality of "partial birth" abortions, their negative effects on women's health and their "confusion" of the physician's proper role. It allows the husbands of adult women, and the parents of minors, who choose to have dilation & extraction to collect civil damages from physicians. (Which may in effect cause doctors providing such abortions to be doing them for free even if they charge for them.) Unlike the pot buyer and consumer, "a woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.

Based on the fact that abortion normally is done for doctors' profit, I can see how the "partial birth" abortion ban properly falls within Congress's interstate commerce clause powers as limned by Raich and Wickard. On the other hand, I wouldn't be wholly surprised if someone on the Supreme Court found Lopez/ Morrison rationale to limit federal legislation that lacks economically oriented purpose.

* In another dissent from Easterbrook unfortunately unincluded in Project Posner, Judge Posner remarks,

To understand this issue requires understanding the peculiar and questionable character of these statutes. They do not protect the lives of fetuses either directly or by seeking to persuade a woman to reconsider her decision to seek an abortion. For the statutes do not forbid the destruction of any class of fetuses, but merely criminalize a method of abortion--they thus have less to recommend them than the antiabortion statutes invalidated in Roe v. Wade, 410 U.S. 113 (1973). If any fetal lives are saved by these statutes, it will only be by scaring physicians away from performing any late-term abortions, an effect particularly likely in Wisconsin, whose statute imposes a punishment of life imprisonment for its violation. ...
The statutes do not seek to protect the lives or health of pregnant women, or of anybody else, as by confining the performance of abortions to licensed physicians, as in Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam), or to facilities equipped to deal with emergencies that may arise in the course of an abortion, particularly a late-term one. A legislature can ban quacks from practicing medicine without making an exception for those quacks (and no doubt there are some) who are abler than the worst physicians. Any general health regulation is likely to hurt a few people. But as banning "partial birth" abortions is not intended to improve the health of women (or anyone, for that matter), it cannot be defended as a health regulation. ...
The statutes do not outlaw a particularly cruel or painful or horrifying mode of abortion. This can be shown with the aid of a simple example. Suppose that the fetus is hydrocephalic, so that its head is too large to pass through the cervix. If the physician performing the abortion crushes the fetus's skull in the uterus, killing the fetus while the fetus is still entirely within the uterus, he is not guilty of violating either of the statutes before us. But if before crushing the fetus's skull the physician turns the fetus around so that its feet are protruding into the vagina, he has committed a felony. In both cases, the fetus is killed by the crushing of its head in the uterus. (The crushing is necessary to enable the fetus to be removed through the birth canal without making the woman go into labor.) From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally
privileged. ...
The wave of "partial birth" abortion statutes that broke over the nation after a description of the D & X procedure was publicized--see Martin Haskell, "Dilation and Extraction for Late Second Trimester Abortion" (1992), reprinted in 139 Cong. Rec. E1092, 1993 WL 135664 (Apr. 28, 1993), and in The Partial-Birth Abortion Ban Act of 1995, Hearing before the S. Comm. on the Judiciary, 104th Cong., 1st Sess. 5 (Nov. 17, 1995)--does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based -- as is implicit in Judge Manion's defense of the laws-- on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn't realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus's feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late- term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational.

November 27, 2006 06:16 AM | TrackBack
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