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Alternative Grounds for Gonzales v. Carhart
Andrew Hyman

The U.S. Supreme Court is currently deciding whether to grant certiorari in the very cert-worthy abortion case of Dobbs v. Mississippi, as I mentioned here on this blog in February.  This month, Ed Whelan again cogently urged that cert be granted in that case.

While we’re on this (grisly) subject, I’d like to discuss the Court’s 2007 decision in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003. That Act probably overstretched the Interstate Commerce Clause.  As Justice Thomas wrote in his Gonzales v. Carhart concurrence, joined by Justice Scalia, “I ... note that 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.”  

Had the scope of the Interstate Commerce Clause been before the Court in Gonzales v. Carhart, the 2003 Act’s attempted ban on a certain type of abortion may well have failed to pass muster, given that abortion does not necessarily involve interstate commerce.  As Professor Glenn Reynolds has noted, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.”  The 2003 Act explicitly requires a link between commerce and abortion (“in or affecting interstate or foreign commerce”), and therefore the 2003 Act essentially bans a null set of “partial birth abortions.”

Perhaps Congress could have legitimately banned surgical chemicals, instruments, and components usable during “partial birth abortion” from entering into any state where “partial birth abortion” was legal, and perhaps Congress could have additionally banned people from producing such chemicals, instruments, and components from scratch entirely within their own state (under logic similar to that used by the Court in the marijuana case of Gonzales v. Raich).  But a ban like that would have affected a very broad range of surgeries other than abortion, because of the dual-use nature of the relevant chemicals, instruments, and components.  Therefore, Congress did not attempt such a broad ban in 2003, and instead purported to instruct people in each state how to use items that had already legitimately moved in interstate commerce, much as Congress’s Gun Free School Zones Act had purported to instruct people where to carry guns that had already legitimately moved in interstate commerce.  Under the misbegotten logic of the GFSZA, Congress could overturn just about any law in any state for any reason.

And that brings me to an alternative rationale for at least part of the federal Partial-Birth Abortion Ban Act of 2003.  The Equal Protection Clause may well authorize that 2003 Act, insofar as it applies to viable human beings, on the assumption that the framers of the Fourteenth Amendment (during the 1860s) understood personhood to be independent of where a human being is located, so that if one living human being of a certain size is a “person” then so is any other living human being of that exact same size.  This alternative rationale for upholding the 2003 Act seems valid under both current Equal Protection doctrine, as well as my more idiosyncratic view of that clause.  SCOTUS has never yet said that Fourteenth Amendment personhood has kicked in by viability, but they have never said it hasn’t either, and to my mind the former seems more plausible than the latter, for the reasons outlined above.  I am not suggesting that SCOTUS would or should defer to Congress on this question, for purposes of the Fourteenth Amendment, only that SCOTUS itself should say when it thinks constitutional personhood has started.

I do not, however, agree with those who suggest that the Equal Protection Clause could be used to protect human beings before viability, because states do not typically protect any born human beings that are so small.  Still, personhood is not a sensible prerequisite for state legislation protecting a pre-viable fetus, any more than personhood is a sensible prerequisite for state legislation protecting animals from cruelty, or protecting corpses from mutilation.  

I hope that courts will not hesitate to ensure that state and federal legislators are able to address the important and deeply-felt issues surrounding abortion.  Legitimate legislative powers cannot be permanently and mistakenly abridged, without establishing an extra-constitutional judicial power to make, perpetuate, and enlarge judicial errors.  One of those errors could and should be reviewed in the Dobbs case.