A Comment on Federal Abortion BansAndrew Hyman

I agree with co-blogger Michael Ramsey (here) that the Commerce Clause does not empower Congress to regulate abortion, as I previously discussed on this blog here.  But Congress does have power under the Equal Protection Clause and Section 5 of the Fourteenth Amendment to enforce a ban on abortion provided we’re talking about post-viability.  Even if a human being is a “person” pre-viability, that human being is not similarly situated to any born person.  In contrast, post-viability, there are born people at the same exact stage of development. Moreover, birth could be induced at any time post-viability, so the only slight difference between the born child and the viable unborn child is location, and so a state should protect them equally.