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Can Criminals Give Congress Expanded Power to Overturn State Laws Regarding Interstate Commerce?
Andrew Hyman

In the wake of the release of the Supreme Court’s February draft opinion in Dobbs v. Jackson Women's Health Organization, there is some pressure on Congress to more or less codify Roe v. Wade.  I have no idea how successful such an effort might be, but it does present the question whether Congress has power to do it, using congressional power to regulate interstate commerce. 

Congress has legislated on the subject of abortion in the past.  The Supreme Court’s 2007 decision in Gonzales v. Carhart (2007) upheld the federal Partial-Birth Abortion Ban Act of 2003. However, as Justice Thomas wrote in his Gonzales v. Carhart concurrence, joined by Justice Scalia, “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.”  So it’s an open question.  Incidentally, I have previously suggested on this blog an alternative rationale for upholding the 2003 Act  that does not rely upon the Interstate Commerce Clause.

Regardless of whether the 2003 Act was constitutional or not under the Interstate Commerce Clause, there’s a very significant constitutional difference between what Congress did in 2003 compared to what it may do next.  In 2003, Congress banned a certain type of abortion that various states had allowed; now, the situation is reversed, and a move is afoot in Congress to mandate availability of certain types of abortion that various states have banned.  That the current situation is the reverse of the 2003 situation could well make a big difference in what the Supreme Court decides.

In cases like Wickard v. Filburn (1942), the Court gave a very broad interpretation of congressional power under the Interstate Commerce Clause.  But, in the year 2000, Justice John Paul Stevens pointed out that Wickard was a Congress-bans-what-states-allow case rather than a Congress-allows-what-states-ban case:

Regulating a lawful market in wheat is one thing. Regulating a commerce in something that's forbidden to be sold is quite a different thing….

If a state bans certain types of abortion, then (assuming everyone obeys that state law) there is no commercial activity for Congress to regulate.  The Supreme Court addressed this type of situation in National Federation of Independent Business v. Sebelius (2012):

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation…

Likewise, in a case where a state has banned a certain type of abortion, and citizens have obeyed that ban, Congress could only overturn the ban by legislating against commercial inaction rather than by regulating commercial action.  Of course, the reasons for not buying insurance described in NFIB v. Sebelius probably had little to do with obeying or defying Congress, but the textual principle is the same: to “regulate” something, Congress must see some commercial action to regulate.  If that indeed was the original meaning of the word “regulate” in the context of the Interstate Commerce Clause as of 1789, then congressional action today to overturn state abortion bans is likely unconstitutional.

The foregoing analysis applies to a state (A) where people are law-abiding, and where citizens do not violate the state’s ban.  I have argued that Congress cannot interfere with such a ban in State A, under the original meaning of the Interstate Commerce Clause, because there is no economic activity to regulate.  But what about a state (B) where lots of abortion providers do violate the state’s ban, and incur criminal punishment for doing so?  There in State B, we no longer have inaction, but rather illicit action.  However, I don’t think it’s reasonable to suppose illicit action can give Congress more power in State B than it has in State A, to overturn the state’s ban on certain types of economic activities.  This is especially true of economic actions that do not directly involve any crossing of state lines, because congressional power in that realm is already very strained and tenuous.

MICHAEL RAMSEY ADDS: I share the doubts of Justices Scalia and Thomas that the federal law at issue in Carhart was within Congress' interstate commerce power, for the reasons stated by Chief Justice Marshall in Gibbons v. Ogden (1824).  A transaction between an abortion provider in a state and a resident of that state is not a transaction "among the several States."  As Marshall put it:

The subject to which the power is applied, is commerce "among the several States".  The word "among" means intermingled with. A thing which is among others is intermingled with them.  ...

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other states.  Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may properly be restricted to that commerce which concerns more States than one.  The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power would to be extended, would not have been made, had the intention been to extend the power to every description.  The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.

And even if one accepts the effects test of Wickard v. Filburn, a local abortion transaction does not have an inseparable effect on a comprehensive federal regulation of interstate commerce in the way growing wheat for domestic consumption did in Wickard.