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Abortion, Equal Protection and When and If Raich and the Commerce Clause take abortion out of the scope of Congress's enumerated powers

By 4L

Although I try to stay out of weighing in on such matters, there was a passage about Justice Ginsburg in The Nine that has got me thinking. Basically, Toobin writes that Ginsburg was selected in part because of how she approached the entire Roe debate from an equal protection standpoint. So, here's one way the abortion issue may play out.

Among other things, the U.S. Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005) suggests that the Commerce Clause power granted to the Congress is "breathtakingly expansive." While I will defer the intricacies of this case to the academics, Congress basically has the power to regulate anything dealing with "the production, distribution, and consumption of commodities." What Raich resolved (that Lopez and Morrison arguably did not) was the deference entitled to Congress in these matters. Under either the majority or Scalia's concurrence's view (under the Necessary & Proper Clause), the deference when the Commerce Clause is properly invoked by Congress is great.

The question, as suggested by Scalia in his concurrence in Gonzales v. Carhart, is whether abortion has anything to do with commodities such that it will fall within the scope of Congress's commerce power. Assuming when this gets resolved, the answer is no, the question becomes, I submit, whether, if given back to the states to decide, whether they can either. I think when this question arises, it's going to come down to interpreting how much the states' gave up in passing the 14th amendment.

Put another way, if Roe (and to some degree Casey) is overruled or further eroded or restricted, what happens next? Well, one possible outcome would be that Congress would try and ban abortions, probably under the commerce clause. Regardless of what power they try and pass it under, and assuming it passes, it's going to be challenged immediately. So, on the assumption that Raich will dictate whether or not abortions affect commerce (which seems unlikely), would that mean simply that the choice regarding this issue would then fall to the states? For the purposes of the rest of this argument, let's say Congress ultimately has no power to regulate this area and the states do. Now state A bans and adjacent state B does not. What constitutional issues remain and how will the media attempt to spin this issue?

I see two issues remaining that make it questionable as to whether a state can ban abortion, and regardless of how the courts settle the issue, these issues will extend beyond Roberts' tenure as CJ. Arguably, the practical effect of State A banning would require someone seeking an abortion to engage in interstate commerce such that they have to travel to State B. I'll set aside the impracticalities issues if State A is somewhere large like Montana and a poor citizen in the geographic center can't afford to travel out of state. I see this as a legislative debate issue that would be considered in passing the law in either State A or B, so I'll assume away the rational basis argument on this one. I will save my comments about State A citizens for when I am living in State A.

The stronger issue, as pointed out by Toobin in the book, is Justice Ginsburg's equal protection argument. Because I haven't really studied this area in any great detail beyond what I needed to know for the bar, I can't state whether or not this is a winning argument. Nor do I know whether this is already before the Court and my assumptions are incorrect. It does not matter, however. My point to this exposition isn't to express my position on whether it's Congress's or the State's power, if either can do anything in this particular area beyond what is already done, or where I think the issues shake out. It's only to spark some thought into the debate, based on where I think the state of the law is shifting.

Because I'm probably overlooking something and am otherwise unable to make an informed decision, I'll be happy to debate the issue a little more and research more about it if someone wants to provide cites to relevant law review articles expressing the sides of this equal protection debate. The bottom line is that I think this entire debated area is going to shift into equal protection land and perhaps create a better way to reexamine the Civil Rights Cases. Whether it actually plays out this way or not remains to be seen. In either case, it's an interesting time for constitutional scholars and the law clerks working on related cases. Maybe one of them will chime in on it (although doubtful).

Full post as published by The Once and Future Lawyer on December 30, 2007 (boomark / email).