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09/17/2022

Is a Federal Law Restricting Abortion Constitutional?
Mike Rappaport

Spurred on by Lindsey Graham’s proposed abortion legislation many law professors, including our very own Mike Ramsey, are writing that Congress does not have the constitutional authority to prohibit abortions (or presumably to protect the right to abortion).  I agree with Mike that the original meaning of Congress’s power under the Commerce Clause and the Necessary and Proper Clause does not authorize such legislation. 

The more difficult question is whether existing doctrine allows Congress to so legislate.  I am not so sure that I agree that Congress lacks the authority under existing doctrine.

I have not seen any of the commentators specifically address the most obvious way that such legislation might be defended.  Under Lopez, Morrison & Raich, Congress has the authority to pass laws that have a substantial effect on interstate commerce.  If the law regulates an economic activity, then small, individual effects on interstate commerce can be aggregated to produce a substantial effect.  If the law does not regulate an economic activity, the small, individual effects cannot be aggregated. 

Thus, a key question is whether providing an abortion is an economic activity.  Since abortions are provided for money – they are an economic transaction – one would assume that they are an economic activity. 

Are there small, individual effects on interstate commerce?  Based on the cases, which have a very lenient standard in this area, the answer would seem to be yes.  For example, if the law restricting abortion is not passed, then some people may travel from one state to another to get an abortion.  If the national law is passed, they will not so travel.  Moreover, if the law is passed, there are likely to be more people in the country, which has an economic effect.  And so on.  Thus, it would appear that the law is constitutional based on an aggregation of small effects that collectively represent a substantial effect on interstate commerce. 

Perhaps I am not applying the test correctly, but I would love to know what I am missing.

To be clear, there is another question that could be asked about Graham’s proposed legislation.  Would the current Supreme Court hold it to be constitutional?  It is possible that the current Court might hold the law unconstitutional but that does not mean the law is unconstitutional under current doctrine.  Rather, the Court might depart from current doctrine to strike down the law.  I think there is a real possibility that this could occur.