The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause
Ides, Allan, Constitutional Commentary
The Partial-Birth Abortion Ban Act of 2003 (PBABA), signed into law on November 5, 2003, by President Bush, (1) bans the use of partial-birth abortions throughout the United States except when necessary to save the fife of the mother. Specifically, section 1531(a) of PBABA provides:
Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. (2)
Section [section] 1531(b) defines the term "partial-birth abortion" (3) and extends coverage of the prohibition to any "individual" who performs a partial-birth abortion, regardless of whether that person is a licensed medical practitioner. (4) The phrase "partial-birth abortion" is highly charged and designedly so. It is the preferred usage of those who object to the dilation and extraction method of abortion as inhumane. I use the phrase "partial-birth abortion" throughout the text simply because it is language adopted by PBABA.
Congress passed similar bans in 1996 and 1997, both of which President Clinton vetoed. (5) Three years after the second veto, and while Congress was considering a third version of the ban, the Supreme Court decided Stenberg v. Carhart, (6) holding that Nebraska's prohibition on partial-birth abortions unduly burdened a woman's right to choose. Despite Stenberg, congressional efforts to ban partial-birth abortions continued. Unquestionably Congress was fully aware of Stenberg and its potential constitutional implications when it revisited the issue and passed PBABA in 2003. (7) Not too surprisingly, debate on the constitutionality of PBABA compared this statute with the ill-fated Nebraska statute, contesting whether PBABA also imposes an undue burden on a woman's right to choose. (8) My focus, however, is on a separate constitutional concern, namely, whether PBABA represents a valid exercise of the commerce power, the expressly identified authority under which the statute was enacted. (9) On this seemingly significant question, the legislative record is relatively spare and the post-enactment debate largely silent.
It is possible that the constitutionality of PBABA will be resolved without any reference to the commerce power. That possibility depends, however, on the stability of the Stenberg decision. While principles of stare decisis lend support to that stability, Supreme Court Justices have been known to shift and modify their views in the abortion context. Any variation between the Nebraska statute and PBABA could tilt a swing Justice in an unanticipated direction. Moreover, no one can accurately predict what the composition of the Court will be if and when PBABA arrives there for review. Thus, given the possibility of either doctrinal shift or personnel change at the Supreme Court, one cannot disregard other potentially dispositive constitutional issues. Certainly if the Stenberg majority does not hold, the question of congressional power might become central to the controversy. But perhaps more importantly, if the doctrine of enumerated powers is to be taken seriously, some thought ought to be given to the enumerated power that ostensibly serves as the basis for this enactment, if for no other reason than a respect for constitutional structure. Sound constitutional analysis dictates that the power to legislate be established before subjecting an act of Congress to external limits such as those imposed by the due process clause.
In what follows, I suggest that the constitutionality of PBABA is subject to serious doubt under current commerce clause doctrine. …