The Partial-Birth Abortion Ban Act of 2003 and the commerce clause.

• Author: Ides, Allan

The Partial-Birth Abortion Ban Act of 2003 (PBABA), signed into law on November 5, 2003, by President Bush, (1) bans the use of partial-birth abortions throughout the United States except when necessary to save the fife of the mother. Specifically, section 1531(a) of PBABA provides:

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. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. (2) Section [section] 1531(b) defines the term "partial-birth abortion" (3) and extends coverage of the prohibition to any "individual" who performs a partial-birth abortion, regardless of whether that person is a licensed medical practitioner. (4) The phrase "partial-birth abortion" is highly charged and designedly so. It is the preferred usage of those who object to the dilation and extraction method of abortion as inhumane. I use the phrase "partial-birth abortion" throughout the text simply because it is language adopted by PBABA.

Congress passed similar bans in 1996 and 1997, both of which President Clinton vetoed. (5) Three years after the second veto, and while Congress was considering a third version of the ban, the Supreme Court decided Stenberg v. Carhart, (6) holding that Nebraska's prohibition on partial-birth abortions unduly burdened a woman's right to choose. Despite Stenberg, congressional efforts to ban partial-birth abortions continued. Unquestionably Congress was fully aware of Stenberg and its potential constitutional implications when it revisited the issue and passed PBABA in 2003. (7) Not too surprisingly, debate on the constitutionality of PBABA compared this statute with the ill-fated Nebraska statute, contesting whether PBABA also imposes an undue burden on a woman's right to choose. (8) My focus, however, is on a separate constitutional concern, namely, whether PBABA represents a valid exercise of the commerce power, the expressly identified authority under which the statute was enacted. (9) On this seemingly significant question, the legislative record is relatively spare and the post-enactment debate largely silent.

It is possible that the constitutionality of PBABA will be resolved without any reference to the commerce power. That possibility depends, however, on the stability of the Stenberg decision. While principles of stare decisis lend support to that stability, Supreme Court Justices have been known to shift and modify their views in the abortion context. Any variation between the Nebraska statute and PBABA could tilt a swing Justice in an unanticipated direction. Moreover, no one can accurately predict what the composition of the Court will be if and when PBABA arrives there for review. Thus, given the possibility of either doctrinal shift or personnel change at the Supreme Court, one cannot disregard other potentially dispositive constitutional issues. Certainly if the Stenberg majority does not hold, the question of congressional power might become central to the controversy. But perhaps more importantly, if the doctrine of enumerated powers is to be taken seriously, some thought ought to be given to the enumerated power that ostensibly serves as the basis for this enactment, if for no other reason than a respect for constitutional structure. Sound constitutional analysis dictates that the power to legislate be established before subjecting an act of Congress to external limits such as those imposed by the due process clause.

In what follows, I suggest that the constitutionality of PBABA is subject to serious doubt under current commerce clause doctrine. That is not to say that PBABA is "clearly" or "plainly" unconstitutional. The nuances of the Rehnquist Court's commerce clause doctrine are yet to be fully developed, and just as the Court's decision in Stenberg can be revised, so too can the Court's approach to the commerce clause. And, of course, reasonable minds can differ at the outer edges of application. But given the Rehnquist Court's most recent pronouncements on the commerce clause, one cannot help but conclude that PBABA represents, at best, a very poor effort to craft a piece of legislation in conformity with the obvious and applicable elements of constitutional doctrine.

BASIC COMMERCE CLAUSE STANDARDS BRIEFLY CONSIDERED

Pursuant to the commerce power, Congress may regulate both interstate commerce and certain activities that substantially affect interstate commerce. As to the regulation of interstate commerce itself, Congress is empowered to regulate the channels and instrumentalities of interstate commerce, as well as things or persons in or using those channels or instrumentalities. (10) Since the New Deal, the Court has not found a single "first category" exercise of the commerce clause to have exceeded the scope of the granted power. The same cannot be said of the second category. Under the category involving the regulation of matters that substantially affect interstate commerce, Congress does not direct its power at interstate commerce itself, but at matters outside commerce which nevertheless influence it. In this context, the modern Court has imposed discernable limits on congressional power, and one sitting Justice has even suggested that the category is without constitutional justification and ought to be abandoned. (11) The first question, therefore, is whether PBABA regulates interstate commerce itself, and hence is relatively immune from judicial oversight, or whether it merely regulates matters that affect interstate commerce, potentially subjecting the statute to more active judicial oversight.

PBABA prohibits the performance of any partial-birth abortion "in or affecting interstate ... commerce." (12) At first blush, this language may suggest that the statute represents an exercise of both aspects of the commerce power, the regulation of interstate commerce itself--the performance of a partial-birth abortion "in" interstate commerce--and the regulation of an activity that substantially affects interstate commerce--the performance of a partial-birth abortion "affecting" interstate commerce. Yet, it is doubtful that word "in" as used in PBABA signifies an attempt to regulate the channels or instrumentalities of interstate commerce. For one thing, it is not clear how a partial-birth abortion could be performed "in" interstate commerce in any but the most bizarre circumstances. Nor does the phrasing of the statute ("a physician who, in ... interstate ... commerce, knowingly performs a partial-birth abortion") sensibly apply to a physician who travels in interstate commerce and then performs a partial-birth abortion. Rather, the language connotes that it is the performance of an abortion itself that must take place in interstate commerce. In any event, the "affecting" interstate commerce language would seem perfectly suited to cover the "traveling" physician. Hence, I take the "in or affecting" language as embracing the performance of partial-birth abortions that in some manner affect interstate commerce. In other words, I will treat PBABA as an instance of the second category of commerce regulation, the so-called "substantially affects" test.

In United States v. Lopez (13) and United States v. Morrison, (14) the Court, for the first and then the second time in almost sixty years, restricted the breadth of the "substantially affects" test. In both cases, the Court held that Congress exceeded its commerce power by attempting to regulate matters that were noneconomic and that had at best an attenuated connection with interstate commerce. (15) The two key questions under Lopez/Morrison are, first, whether the regulated activity is economic and, second, whether that activity substantially affects interstate commerce. These questions, although distinct, are intertwined in the sense that a negative answer to the first question, if not wholly dispositive, makes a negative answer to the second significantly more likely. Our answer to the second question may also be informed by the presence or absence of congressional findings or a statutory jurisdictional element, and by whether the regulated activity is one that has been traditionally left to the states.

I turn now to the first step of the Lopez/Morrison analysis, namely, the economic activity element.

IS PERFORMANCE OF A PARTIAL-BIRTH ABORTION ECONOMIC ACTIVITY?

Lopez held that gun possession in a school zone was not economic in any conceivable sense of that word. Morrison arrived at the same conclusion with respect to gender-based violence. (16) A key factor in each case was the absence of an element of commercial exchange embedded in the respective statutory scheme. Had the Gun Free School Zones Act (GFSZA) required possession with the intent to sell, the economic nature of the regulated activity in Lopez would have been established. Interestingly enough, the defendant in Lopez was planning to sell his gun. That's why he brought it to school. But this fact was irrelevant to the Court's characterization of defendant's conduct as noneconomic since application of GFSZA did not require any such showing. In other words, GFSZA regulated only the noneconomic part of the defendant's transaction, namely, his possession of the gun, and simple possession, in the Court's estimation, was noneconomic. Stated somewhat differently, from a constitutional perspective, the fact that Lopez himself was on an economic mission was irrelevant in the absence of an economic statutory element.

The performance of a partial-birth abortion bears a close resemblance to the...