A READER EMAILS:

Why are the major media limiting their discussion of the constitutionality of the Partial Birth Abortion Act of 2003 to whether or not it is in accord with the Stenberg decision? Why is there no discussion of whether Congress has Article I power to enact it? I know that you have written about this in the past (before Morrison?), and was wondering what your thoughts were.

I know the Act seems to have an interstate nexus as an element: “in or affecting interstate commerce.” Huh? When is/is not an abortion “in or affecting interstate commerce?”

When the patient is straddling a state line? Seriously, I don’t know why the press isn’t covering this, except that abortion-ban opponents — who generally favor expansive government power in other areas, I think — aren’t big on commerce-power limits, while anti-abortion types, who include many self-described federalists, don’t want to discuss the issue in this context.

I raised this question some years ago in letters that appeared in the New York Times and the Wall Street Journal, and I got a phone call from one of the sponsors’ legislative assistants, but she kept insisting that there wasn’t a Lopez problem because the bill only affected abortions “in or affecting commerce.” But when I asked what abortions, if any, counted, I didn’t ever really get an answer. But the problem is that either (1) the bill doesn’t affect many, or any abortions; or (2) the bill affects a lot of abortions, but only because it adopts a definition of “commerce” that lets Congress do pretty much anything it wants.

Dave Kopel and I wrote a law review article about this in 1997, and it seems to me that our argument is stronger since the Supreme Court’s more recent federalism decisions. The argument that Congress has this power under the Fourteenth Amendment also seems to have been foreclosed.

This is something that I have called — in a different, but related context — fair-weather federalism. You’d think that the press, which we’re always told is about challenging people, would raise this issue, but it hasn’t done much. Linda Greenhouse mentioned it once in the New York Times, but otherwise the issue has been largely ignored.