The U.S. of House of Representatives is preparing to consider a bill — the Pain-Capable Unborn Child Protection Act (PUCPA) — that would prohibit most abortions performed after 20 weeks from conception. …
… [E]ven if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure. The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states.
The Commerce Clause — specifically, the power to “regulate commerce . . . among the several states” is used by Congress as something of a catch-all justification for all manner of federal laws. So it’s understandable why members of Congress would invoke it here. Yet as the Supreme Court has reaffirmed on multiple occasions, including in NFIB v. Sebelius, it is not a power without limits. It is one thing to use the commerce power to regulate economic activity, or control a significant industry, quite another to limit a controversial medical procedure.
Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce “among the several states.” As Glenn Reynolds notes, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.” For this reason, conservative Republicans who urge courts to respect the limits on federal power — and who argued the individual mandate exceeded the scope of Congress’ Commerce Clause power — should be embarrassed to support the invocation of commerce here.
I think that’s right as a matter of original meaning. The commerce clause directly allows regulation of commerce “among the several States,” which local provision of abortion services is not. Chief Justice Marshall made clear in Gibbons v. Ogden that intra-state commerce is not a power of Congress; it was in this context — though upholding the clearly inter-state regulation at issue — that he famously said “the enumeration presupposes something not enumerated”:
Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.
While Congress’ necessary-and-proper power presumably allows it to reach somewhat beyond purely interstate commerce to regulate intra-state commerce that is closely tied to inter-state commerce, that isn’t the situation here; I take it that the abortion providers are principally local, and in any event if Congress’ goal is to prevent interstate commerce effects, it could prohibit interstate travel for the purpose of obtaining a late-term abortion. A flat ban sweeps far more broadly than is plausibly necessary, even if one accepts Marshall’s weak definition of necessary in McCulloch v. Maryland. Local provision of abortion services do not “concern[ ] more than one state.” The alternative would be the complete erosion of Gibbons‘ line between interstate commerce and intrastate commerce.
I’m much less convinced that this is the right answer under current law, however. The modern Court’s only limits on Congress’ commerce power have been for activity that is non-economic: Lopez, Morrison, Sebelius. Cases such as Perez and Katzenbach v. McClung suggest that any economic activity, given the interconnectedness of the modern economy, may have enough of an effect on interstate commerce to come within Congress’ power. Professor Adler says “abortion is not commerce” but I’m doubtful — don’t abortion providers charge for their services, at least for those who can afford to pay? Professor Reynolds says that allowing federal power here would result in there being effectively no limits on federal power, but I’m doubtful about that too — an economic/non-economic distinction would provide limits, and yet allow regulation of the economic activity of providing abortion services.
To be clear, I don’t think modern law establishes the constitutionality of PUCPA beyond doubt (I don’t think doctrinal law establishes very many things beyond doubt, because the Court can read precedents in various ways depending on its inclinations). But Congress seems to me to have a plausible case for its power under modern law.
That raises an interesting dilemma for originalist members of Congress: should they follow originalism or nonoriginalist modern law? Glenn Reynolds says the former:
It’s possible, of course, that the Supreme Court would uphold regulation of abortion under the [commerce] 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. 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.
But members of Congress take their own oath to preserve the Constitution, which imposes an independent obligation on them to take the Constitution seriously, not just to do whatever the Supreme Court will let them get away with. If, as Republicans in Congress keep telling us, they support limited government, then they need to support limits on government even when those limits stand in the way of doing something they want to do.
I wrote about this dilemma here in the context of presidential actions; but the question seems similar from Congress’ perspective. (See here for extensive writing on the subject by Joel Alicea). And at the least, the answer does not seem obvious to me. The law in this area is nonoriginalist; should one be bound by what one thinks the law should be, rather than what the law is?
Perhaps one should be bound by what one thinks the law should be, even if the actual law is (arguably) more permissive, to set a good example. But I am not convinced that the best way to reestablish the Constitution’s original meaning is always for conservatives to follow the original meaning. Possibly there will be a consensus on originalism only when it’s clear (to liberals) that liberals have something to gain from it.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.