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09/18/2022

Another Aspect of Interstate Commerce and Abortion
David Weisberg

Prof. Michael Ramsey (here) and Mr. Andrew Hyman (here and here) have opined on this blog that the Commerce Clause would not authorize a nationwide ban on abortion (and Prof. Ramsey cites a number of other commentators who largely agree), while Prof. Michael Rappaport (here) thinks that, given the current understanding of the Clause (and regardless of whether current understanding conforms to original public meaning), such a ban could well be upheld.  I think Prof. Rappaport’s position is bolstered by the following fairly startling conclusion: If the Commerce Clause would not support a nationwide abortion ban, then it also cannot support significant portions of the Civil Rights Act of 1964.

Title VII of the 1964 Act makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]”  The definition of “employer” is: “[A] person engaged in an industry affecting commerce who has fifteen or more employees[.]”  The term “industry affecting commerce” is defined, in relevant part, as follows: “[A]ny activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce[.]”

Consider an employer that is a medical facility--a hospital or clinic--employing anywhere from fifteen to hundreds of individuals.  It would be ludicrous if that facility argued that, because it was not “engaged in an industry affecting commerce,” it was not subject to Title VII.  It would be equally ludicrous if it argued that, because it could prove that all the employees it had invidiously discriminated against were residents of the same State in which the employer/facility resided, it had engaged in merely intrastate discrimination which could not properly be regulated by Congress pursuant to the Commerce Clause.  Both those defenses would be flatly rejected. 

Now, suppose that among the services that same facility provides to patients are abortions.  I do not believe a single entity can logically be subject to regulation pursuant to the Commerce Clause for purposes of Title VII and not be subject to the Clause if Congress were to enact a nationwide ban on abortion.  If the entity's engagement in interstate commerce is sufficient to justify regulation under Title VII, then that same engagement would necessarily be sufficient to justify regulation under a hypothetical federal abortion ban.

Prof. Ramsey asserts: “The core problem with justifying a federal abortion ban under the power to regulate ‘commerce among the several States’ is that the ban’s ultimate goal has nothing to do with commerce among the states. Its target is a local medical practice that has long been the subject of state regulation.  Any claim that it’s about a matter of interstate commerce is just a pretext.”  He also writes: “Congress is banning local abortions simply to ban local abortions, not to further a regulation of interstate commerce of which local abortions are an inseparable part.” 

But the ultimate goal of Title VII’s ban on invidious discrimination includes banning invidious discrimination perpetrated by an employer who resides in the same State as the employees against whom he/she/it discriminates—that is, the ultimate goal of Title VII includes banning what could well be called “local discrimination.”  Congress could have enacted a version of Title VII that would have prohibited invidious employment discrimination only if the employee and employer resided in different States.  (Remember, even before the present era of telecommuting, hundreds of thousands of employees physically commuted every workday from, e.g., N.J. and Conn. into N.Y.C.)  Just as Congress decided that employment discrimination was a bad thing and should largely be eliminated nationwide (even including “local discrimination” that could be regulated by the States), so Congress could decide that abortions are a bad thing and should largely be eliminated nationwide (even including “local abortions” that could be regulated by the States).  Banning the local variety of what Congress decides is generally a bad thing is no more a “pretext” in one context than it is in the other.    

To be absolutely clear: I’m not advocating for a result.  I personally believe a federal ban on abortion would be lousy policy.  But I nevertheless contend that the view that Congress lacks the power to enact such a ban has implications that have not always been recognized and that many would consider unsettling.