Looking for a model answer: may Congress prohibit sex-selective abortions?

• Author: Paulsen, Michael Stokes

I have put what I think are the best student answers for my Constitutional Law exam on reserve, but my students are still not satisfied: What's the right answer to Question 1, Professor Paulsen? Alas, the question itself shows that I am a failure as a teacher. Well, then, they persist, what do you think is the right answer? How would you have answered it?

Truth be told, I developed the problem without an expected right answer in mind, or even a settled personal view, in part to see what students would come up with. (Sound familiar to anyone?) I regarded the problem as a rather interesting idea, quite aside from being a way to test such con law building-block basics (basics?) as the commerce power, the spending power, and the enforcement power under section five of the Fourteenth Amendment. My clever, diabolical wrinkle was to combine these core building blocks of constitutional law with issues of substantive due process and equal protection, in a kind of perverse way that would create cross-currents with students' political intuitions. How would "liberal" students, in love with the Violence Against Women Act (VAWA), assess a prohibition of gender-specific abortion? How would "conservative" students, foes of federal legislative power (and no great fans of gender-discrimination law), react to a federal prohibition of abortion? Could students assess constitutional arguments apart from their political or policy inclinations? (It is a constant battle to convince law students that Constitutional Law is more than just viscerating preferred outcomes, and the Supreme Court doesn't always help much.) I wanted to see thoughtful, well-reasoned constitutional arguments. (I know, I know: how naive!) I wasn't looking for any particular outcome. (I know, I know: students will never believe it.)

But then I became fond of my test question as an actual substantive proposal: Could Congress pass a statute banning sex-selective abortion--abortions for reasons of the gender of the child--as a way of enforcing the Fourteenth Amendment's prohibition (sometimes) of gender discrimination, consistent with the Court's abortion jurisprudence (or with a prediction of where that jurisprudence is headed)? As an aspect of commerce-regulation? Pursuant to the spending power? In class, we debated United States v. Morrison, concerning the constitutionality of the Violence Against Women Act, while the case was pending before the Supreme Court. We discussed Stenberg v. Carhart...