A question arising from the controversy over partial birth abortions:
Forgive my ignorance but I am not sure what standing the Federal Government has in regulation of abortion. On my limited understanding of the Constitution, shouldn’t this be a power reserved to the States unless interstate issues occur?
Please enlighten me.
Pjen: you would think so.
But as it happens, the federal constitution, the supreme law of the land, guarantees individuals a right to privacy. This right is applicable to the states as well, through the operation of the Fourteenth Amendment. When states seek to impermissibly infringe the ability of individuals to obtain abortions, they tread on that right of privacy, and it becomes a federal constitutional question.
If you wish to discuss where, precisely, this right to privacy is found in the federal constitution, I suggest a search of GD and The Pit, as we’ve covered this ground extensively.
I understand that- how the right to privacy is granted by the constitution (or at least a more recent judicial view of the constitution).
But how does this give the Federal Government the right to legislate on this matter to limit such a right to privacy?
1: If there is a right (to/of whatever: privacy, bearing arms, trading, voting, etc.) protected under the Federal Constitution, the Federal government may intervene in its direct-to-the-citizen regulation as far as the Constitution itself allows (e.g. Voting Rights Act, Civil Rights Act, Brady Bill, etc.). WHAT the Constitution itself allows is of course subject to interpretation by the Courts. Plus of course it can intervene to ensure that all States protect the same basic federally recognized level of that right (e.g. sending troops in the 1950s/60s to enforce school integration).
2: I think that pjen’s question arises from the anti-“PBA” law recently passed at the federal level. Thing is, IIRC SCotUS has not ruled that abortion is an absolute within the right of privacy, but recognizes it as subject to regulations and limitations short of an outright blanket ban. So the question is if that extends to the direct Federal level and how far.
3: Statutes are presumed constitutional until successfully challenged before the courts. Congress can pass any statute overriding state law to regulate anything they think is in their bailiwick (be it abortion, medical marijuana, gun shows, flag protection, marriage definitions, etc.) and it’s up to affected citizens to go before the court to get a ruling that Congress has exceeded the powers granted by the Constitution.
IANAL, YMMV, etc.
Well, that’s actually ben one of the big problems. Not only can there be no real political agreement between various factions over abortion, there is a huge problem with SCoTUS’s logic, or at least a significant number of poeple feel that way. Scotus sort of “bent” the Constitution, to a degree more than a lot of people accept in the ruling, which has lent Roe v Wade an air of illegitimacy in some circles.
I tried to write that non-partisanly. I hope I succeeded.
Pjen’s question is not whether the 14th Amendment prohibits Congress from legislating against partial-birth abortions. As I read it, he is asking what power of Congress enables it to legislate on issues of health at all, an area traditionally reserved to the States. The U.S. (that is, federal) government is one of limited powers, and Congress is not empowered to make any law it wishes – it must base its actions on one of its Powers such as those enumerated in Article I, Sec. 8, the enforcement powers in the Reconstruction Amendments, or some other Power elsewhere in the Constitution. The OP asks “which one?”
The answer is the Commerce Clause. Art. I, Sec. 8, cl. 3 of the Constitution states that Congress is empowered “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” 18 USC 1531, newly-created by The Partial-Birth Abortion Ban Act of 2003 (P.L. 108-105, Nov. 5, 2003), states: “(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.” (emphasis added by me)
Since the New Deal, the Commerce Clause has been interpreted extremely broadly. In the 1995 Lopez case, the Supreme Court began to demand a more concrete nexus between federally-regulated conduct and an actual effect on interstate or foreign commerce than had been required under previous jurisprudcence. I am not convinced that the PBABA should pass muster under post-Lopez Commerce Clause jurisprudence, although I also see why it’s a closer case than Lopez was. However, it appears from the news reports that the immediate legal challenges are on right to privacy grounds, not absence of legislative authority grounds.
–Cliffy
The OP has an excellent question, and it has been asked by countless people. People have been arguing about it for decades.
There is no objective answer to your question. It depends on how you view the role of the federal government vs. the role of the states. Therefore, all answers are really opinions.
I understand this is GQ, but here’s my opinion for what it’s worth:
I am opposed to abortion. I believe it is murder. Murder is illegal, therefore abortion should be illegal. But… this should not be a federal issue. The Supreme Court was wrong for even hearing Roe vs. Wade; it should have turned it back to the states. Each state should pass its own abortion laws. By the same token, I am also against federal murder laws.
One more thing: While I am (obviously) very pro-life, I am against the federal ban on partial birth abortions. (How many pro-lifers will say that?) As stated above, it is my opinion that the federal government should stay out of the abortion business, and I say this even when a federal law is “on my side.”
Not to go all GD on you, but what do you mean by this? SCOTUS was acting completely properly in deciding to hear the case. “Roe” challenged the constitutionality of a state law. Hearing challenges to the constitutionality of state laws is part of what SCOTUS does. You obviously disagree with the result of Roe, but that doesn’t mean that the Court erred in its decision to take the case.
The OP is right that this the PBA ban raises questions of the power to regulate abortion, not the limits on that power contained in the Bill of Rights.
As dubious as it sounds, the commerce clause is the answer. I believe the civil rights act in 64 was based on the commerce clause too. If you want to know the limits of federal power, read Wickard v. Philburn which stands for the proposition that the Feds power under the CC is unlimited (I’m exaggerating but not much).
Regardless of your view on life/abortion, many scholars believe Roe was wrongly decided. The right to an abortion according to Roe is implied in the shadows and intersectinos of the First and Fourth Amendments. As bad as that reasoning is, Roe stands for the proposition that SCOTUS can make up rights out of whole cloth. The latest is diversity - according to SCOTUS, the government’s interest in promoting diversity is a compelling interest that trumps one’s other rights in the Bill of Rights. So, for example, your rights to equal protection, free speech, free assembly, etc go out the window if the govt says their motive is diversity. This is an unintended consequence of Roe.
However, SCOTUS properly accepted the case since it dealth with federal constitutional law. I and other strict constructionists would have preferred to see SCOTUS say there is no right to an abortion. This would not make abortion illegal, but rather would give abortion the status of what the 50 state legislatures gave it. True, in 1973 it was illegal in most states, but if Roe were overturned today I doubt it would stay illegal in most states.
It’s Wickard v. Filburn. I hate to be snarky, but it’s probably a good idea to read the thread before you post to it, LemonThrower – a gentleman of unquestionable wit and sophistication already answered the question.
–Cliffy
I understand this. But didn’t the Supreme Court rule that laws forbidding abortion are unconstitutional? If so, then the Supreme Court (in effect) said that the Federal Constitution protects the “right” for a woman to get an abortion. And this is where the Supreme Court erred, IMO. If the Supreme Court did not rule that laws forbidding abortion are unconstitutional, then we can only conclude that a state is currently allowed to pass laws forbidding abortion.
Crafter_Man
In your original quote, you said:
Otto pointed out that since Roe v Wade was a constitutional issue, SCOTUS was absolutely proper in agreeing to hear the case. If I understand your second message, you disagree with their ruling in the case. Two different things.
I should add that in the intervening years, there have been decisions which have modified Roe, most notably Planned Parenthood of Southeastern Pennsylvania v Casey in which a splintered court upheld the central tenets of Roe but implemented an “undue burden” test on laws restricting abortion.
I believe that the pro-choice position was also argued from the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
http://www.talkleft.com/archives/000595.html
Not the best site for the 9th Amendment and its relation to the abortion debate. However, it shows that the Ninth Amendment (as well as the 14th) supports pro-choice advocates.
Thanks to all above- I think I understand it now. I wonder why the challenges have so far been on the right to privacy rather than on challenges to the Commerce Clause. It would seem that the latter case should at least be argued.
I was afraid that this was a relly stupid question and I’m pleased that it does have some substance.
I wonder that as well, Pjen – I think the Commerce Clause challenge is a strong case, but the fact is that essentially this same law was struck down on privacy grounds by SCOTUS, so it’s analytically an easy case to address on the privacy issue – that is, there’s just a simple quetion as to whether the changes to this version go far enough to address the deficiencies identified in the Court’s previous opinion.
–Cliffy
–The Ninth amendment was not relied on by the Roe court but as you point out it could have been. The Ninth and Tenth Amendments are disfavored by courts because if the rely on them to decide a case they will gut federal power. This is more of a political tendency of the Court rather than an academic one.
–You are correct that few “powers” challenges have been raised so far because most abortion laws that have been challenged have been state laws, and there is therefore no question of whether the federal government had the power to enact the law being challenged. I believe the law in Roe was a Texas statute barring physicians from performing an abortion. At the state level, a powers case is a longshot since a state in many cases will be deemed to have plenary (absolute) power. Of course, you can have a rights case on the state level, which would take the form or arguing that a protection in the state constitution prevents the state legislature from utilizing its otherwise plenary legislative power.
Despite the other poster’s opinion, I doubt Lopez will impact the PBAB, just because Lopez is unlikely to be expanded. Future courts are likely to limit Lopez to its facts. For the left, its probably worse if Lopez is expanded as a limit on the commerce clause than if abortion were outlawed.
I dunno about that, LemonThrower…SCOTUS already expanded Lopez, in U.S. v. Morrison, which struck down part of the Violence Against Women Act. Morrison was relied on by the federal judge I used to clerk for to strike down a man’s criminal indictment under the Freedom of Access to Clinic Entrances Act. He drove a truck through the front door.
The previous case where SCOTUS struck down a PBA ban, Stenburg v. Carhart, was a case involving a Nebraska state law, so no Commerce Clause issue was raised. When the federal PBA ban goes to the Supreme Court, it’s a sure bet they’ll argue both an undue burden on the woman’s right to an abortion under Roe and Casey as well as an overstepping of Congress’ power to regulate via the Commerce Clause under Lopez and Morrison.