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There’s No Federal Power to Ban Abortion [Updated]
Michael Ramsey

As has been widely reported, Senator Lindsey Graham introduced a bill providing a federal ban on abortions more than 15 weeks after pregnancy, subject to some exceptions.  (Howard Wasserman comments at PrawfsBlawg here.) In my view that bill is unconstitutional as beyond Congress’ legislative power – certainly as a matter of the Constitution’s original meaning, and even under modern arguably non-originalist precedents.

Senator Graham reportedly finds power from Congress’ authority over interstate commerce and from Congress’ power to enforce the Fourteenth Amendment, specifically the equal protection clause.  I’ll focus here on the commerce clause argument; the Fourteenth Amendment argument requires one to believe the a fetus is a person for constitutional purposes, which would make state laws allowing abortion likely unconstitutional even without federal legislation – a position I think few people (and very few judges) would endorse.

Congress has Article I, Section 8 power to “regulate Commerce … among the several States.”   A transaction between an abortion provider in a state and a resident of that state may be commerce but there is no sense in which it is a transaction "among the several States." The text's inclusion of the restriction “among the several States” in the description of Congress’ commerce power shows that the commerce power doesn’t extend to all commerce and that local commerce (commerce not among the several states) is excluded.  As Chief Justice Marshall put it in Gibbons v. Ogden (1824):

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.

Congress also has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [i.e., those previously listed in Article I, Section 8].”  Thus Congress has power to make laws necessary and proper to carry into execution its power to regulate commerce among the several states.  On this basis, the modern Supreme Court has approved some laws reaching activities taking place only within a state – most famously growing wheat for personal consumption (Wickard v. Filburn) and possessing marijuana for personal consumption (Gonzales v. Raich).

I think these cases were likely decided incorrectly as matter of original meaning, largely for the reasons stated in Justice O’Connor’s dissent (joined by Justice Thomas) in Raich.  But even if they weren’t, they are easily distinguishable from a federal abortion ban. Wickard and Raich both involved federal regulations of interstate commerce clearly within Congress’ Section 8 power: in Wickard, controlling prices in the interstate wheat market, and in Raich the prohibition of the interstate sale of marijuana. According to the Court, in each case Congress’ regulation of local production and use was “necessary” (perhaps not strictly necessary, but at least useful) to further Congress’ regulation of the interstate market, because the local transactions were not readily separable from interstate transactions.  In the abortion ban situation, there is nothing comparable.  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.

It’s true that Congress’ interstate commerce power may allow Congress to ban interstate travel for purposes of obtaining an abortion.  But the existence of local abortion providers would not undermine such a regulation, because local providers could easily require proof of residency (and the law could require them to).  In any event, the Graham bill does not justify itself in this way.

Congress might also try to justify the Graham bill on the grounds that local abortion services within a state have a “substantial effect” on the national economy.  Although the Court has used the “substantial effect” phrase in cases like Wickard and Raich, it has not allowed mere speculation about remote effects on the national economy to justify regulation of local matters.  In U.S. v. Lopez, for example, the Court (with Justices Scalia and Thomas in the majority) rejected speculation about remote effects on the national economy as a justification for federal regulation of guns near schools.  Any claim about how local abortions affect the national market would be very similar to (and as remote as) the failed justification in Lopez.  And Lopez was surely right on this point as a matter of original meaning, again for the reasons stated by Marshall in Gibbons: “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.”  Accepting the justification proffered in Lopez would erase the distinction between local and national.

Another possible justification is that, to the extent the abortion providers use materials that have been sold in interstate commerce, the providers are subject to federal regulation. Some lower courts have accepted a similar justification in analogous cases, and the Supreme Court suggested it in Katzenbach v. McClung (involving federal regulation of the local activities of a restaurant that purchased meat in interstate commerce). But such a regulation isn’t really a regulation of commerce among the states; it’s a regulation of activity within a state, with only a tenuous connection to interstate activities that does not make its regulation necessary and proper to any enumerated federal power.  As in Lopez, accepting this argument would erase the distinction between local and national.  (McClung is better defended as resting on its primary rationale that, as in Wickard and Raich, the regulation of the local activity was necessary to a broader federal regulation of interstate activity.)

These justifications of broad federal power might be more plausible if they were supported by history of early post-ratification federal regulation that were justified on these grounds. That’s especially true given the Court’s recent emphasis on history and tradition as indicators of original meaning.  But I’m not aware of any early federal law justified on either ground (that is, that a local activity might have a remote speculative effect on the national economy or that an object used in a local activity once moved in interstate commerce).  Thus, if there's any ambiguity as to the original meaning here (which I doubt), history and tradition indicate that the potential justifications for the federal ban are insufficient.

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.  It is not a measure to carry into execution a regulation of interstate commerce: unlike in Wickard and Raich, its motivation is only to claim federal power over activity wholly within a state.  As Chief Justice Marshall also said (in McCulloch v. Maryland), Congress has considerable leeway in deciding how to implement its goals as long as its goals are legitimate (i.e., within Congress’ constitutional power). But, he continued:

[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Go.vernment, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

That is the case of the federal abortion ban: Congress would be “pass[ing] laws for the accomplishment of objects [i.e., regulation of local abortion services] not intrusted to the [federal] Government.”

RELATED:  A Wall Street Journal editorial adds:  "If Republicans care about originalism, and many of them do, then it’s a mistake to start arguing that abortion regulations qualify as 'commerce.'"  Agreed (though I think they meant to say "regulations of interstate commerce").

ALSO RELATED:  From long ago but still on point, Glenn Reynolds and David Kopel: Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban.

UPDATE:  Glenn Reynolds in the New York Post: Sorry, Lindsey Graham: Congress doesn’t have the power to legislate on abortion.

FURTHER UPDATE:  John Yoo agrees in the Washington Post, though without much originalist analysis: Schumer and Graham are both wrong on abortion: Congress can’t legislate it (relying mostly on the modern Supreme Court's Lopez and Morrison opinions).  At Volokh Conspiracy, Ilya Somin agrees on the originalist analysis but is less sure on the modern doctrine:  Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent.

Professor Somin sees Gonzales v. Raich as the main precedent that would be invoked in support of a ban.  He's right that there is some unfortunately broad language in Raich.  But I think the Raich holding is distinguishable for the reasons described in my initial post, and I doubt there are five votes on the current Court for an expansion of Raich in a direction clearly unsupported by the Constitution's original meaning.