Does the federal 20-week abortion ban legislation violate the Commerce Clause?

Yesterday, the United States Senate failed to invoke cloture on H.R. 36, the Pain-Capable Unborn Child Protection Act.  The House version was sponsored by Trent Franks (and passed last spring), the Senate version by Lindsey Graham.  The Senate vote yesterday was 54-42, with four not voting.  This legislation would make it a federal crime to perform or attempt to perform an abortion after it is determined that the probable gestational age of the fetus is 20 weeks or older.  It contains notable exceptions for rape, incest, and preservation of the mother’s life.  The criminal penalty is up to five years in prison, but does not apply to the mother.

The big constitutional objection to this bill (and others like it passed in the various states) is that it violates due process because it would impose a ban on abortions of some fetuses that have not yet reached viability.  In Planned Parenthood v. Casey, the Supreme Court held that the government cannot impose an undue burden on the mother before fetal viability, and, it is argued, a blanket ban would undoubtedly be an undue burden as the Court understands that terminology.

It’s an interesting question.  But I have a different one: where does Congress get the constitutional authority for this legislation in the first place?  The congressional findings allude generally to the Commerce Clause and Section 5 of the Fourteenth Amendment.  But Section 5 power only allows the Congress to reach state action, not private action.  This leaves the Commerce Clause.  Now, I have no doubt that under existing case law, there is a legitimate, and likely successful, argument to be made that this legislation would satisfy the Commerce Clause.  But think about the members of Congress supporting this legislation: are those not the very members of Congress who would typically reject the broad reading of the Commerce Clause that would be needed to save this legislation?  Where are the stock conservative arguments about limiting federal power and giving power back to the States (many of which have passed similar bans)?  As among those who voted for this bill, I would be interested in comparing their views on the constitutionality of ObamaCare with their views on the constitutionality of this abortion ban.

I’m not saying that a 20-week ban is a bad idea.  Nor am I saying that this legislation could not, or should not, survive an Article I attack.  I’m just wondering where the congressional defenders of federalism are on the Commerce Clause issue now.  I would also alert them to Justice Thomas’s concurring opinion in Gonzales v. Carhart, in which Justice Thomas agreed that the federal partial-birth abortion ban did not violate due process but seemed to suggest that he might have a different view of the legislation if it had been subjected to a Commerce Clause challenge (it was not, and therefore he had no occasion to address the issue).

My suggestion: add a jurisdictional element to the bill, limiting it to abortions that occur in or that affect interstate or foreign commerce.

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