Does Congress Have the Constitutional Power to Prohibit Partial-Birth Abortion?

Abstract

The Partial-Birth Abortion Ban Act makes it a federal crime for doctors to perform certain late-term abortions. Congress justified this law as an exercise of its power “to regulate Commerce ... among the several States.” It is unclear whether the Act will be upheld under the Supreme Court's current Commerce Clause standards, which are malleable and therefore tend to be applied in light of each judge's politics and ideology. To remedy this problem, Professor Pushaw urges the Court to articulate and consistently apply precise rules of law rooted in the Commerce Clause's language, history, and early precedent. Under this approach, the Court would sustain the Act because the performance of partial-birth abortions is “commerce” -- the sale of a service in the market -- that has demonstrable effects “among the states.” The proposed analysis is politically neutral, however, because it would also support the constitutionality of the federal statute protecting abortion clinics, as interstate market-based enterprises, from criminal interference. Such an apolitical legal approach seems especially useful when addressing an explosive issue like abortion.

Keywords: abortion, commerce clause, constituional law

JEL Classification: K19