On an emotional level it is difficult to be unhappy with the U.S. Supreme Court’s decision upholding the 2003 Partial-Birth Abortion Ban Act.
The procedure banned in that law, which involves extracting from the womb most of an intact fetus, 20 weeks or older, then piercing or crushing the skull to make sure the baby is dead before the extraction is completed, is, as Justice Anthony Kennedy put it in his narrow 5-4 majority opinion, “gruesome and inhumane.”
Even advocates of an unlimited right to abortion acknowledge that the procedure is rarely performed and there are alternative ways of performing an abortion beyond 12 weeks.
A total of 26 states already have bans on late-term abortions; this decision creates a nationwide ban.
Congress passed the law in response to a 2000 high court decision, Stenberg v. Carhart, that struck down a similar Nebraska law. As Justice Kennedy noted, Congress took into account the court’s objections to the Nebraska law and crafted a law designed to address the concerns expressed in Stenberg. Therefore, opponents had not proved that the law, “is void for vagueness, or that it imposes an undue burden on a woman’s right to an abortion based on its overbreadth or lack of a health exception.”
In the kind of angels-dancing-on-the-head-of-a-pin reasoning that has become the standard in abortion jurisprudence since Roe v. Wade in 1973 discovered a theretofore undetectable constitutional right to abortion (as opposed to each state deciding the matter), this was defensible enough.
Roe v. Wade never said abortion could not be regulated after the first trimester, and the 1992 Planned Parenthood v. Casey case affirmed that abortions could be regulated or banned so long as exceptions were made to protect the life or health of the mother.
As Justice Clarence Thomas noted in a brief concurrence also signed by Justice Antonin Scalia, however, a possibly more important constitutional question, “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”
That’s too bad. The question is perfectly valid. The Constitution enumerated certain powers given to Congress, leaving all other powers to the states and the people.
Traditionally, as constitutional scholar Roger Pilon at the libertarian Cato Institute and John Eastman of Chapman University and the Claremont Institute reminded us, the general police power, under which abortion had traditionally been regulated, resided in the states — until Congress began expanding the meaning of the commerce clause in the 1930s to give it power to regulate anything and everything that might remotely or even theoretically affect interstate commerce.
And the courts let Congress get away with it.
The Rehnquist court began tentatively reining in the power that Congress can claim under the interstate commerce clause in the late 1990s. But in Gonzales v. Raich, a 2005 medical marijuana case, the high court endorsed the most outrageous and expansive interpretation of the power to legislate ever, ruling that medical marijuana that never left California and over which no money ever changed hands could still “affect” interstate commerce, giving Congress the power to prohibit it utterly.
Had the court chosen to revisit its commerce clause jurisprudence, beginning the process of returning abortion regulation to the states, where it should have remained all along, it could have begun to defuse what has become one of the most poisonously divisive issues of our times and reinvigorated the Constitution.
But it chose to dance on pinheads.
So, now, abortion likely will move front and center into the presidential campaign.
Some states will try more expansive bans, and more challenges will come as new laws are applied.