I AGREE: Congress Has No Power to Pass National Laws Regulating Abortion.

The federal government enjoys only the limited powers that are delegated to it by the federal Constitution, and setting abortion policy is obviously not among them. Abortion is not “Commerce,” as that term was originally understood by the public — and nor is it a tax, duty, impose, excise, debt, or credit; a rule of naturalization or bankruptcy; a standard or weight of measure; a punishment against counterfeiting; a post office or postal road — or the use of them; a type of patent; a lower court; an example of piracy or felony committed on the high seas; a matter of war, or a letter of marque and reprisal, or an army or navy; or a calling forth of, or disciplining of, the militia. Abortion is not spending; it’s not naturalization policy; it’s not the addition of a new state or territory; it’s not the time, place, or manner of a federal election. Nor, in either direction, does abortion come within the purview of any of the 27 amendments that have been added to the Constitution since 1787. It is, in short, precisely the sort of question that is reserved to the people and to the states, and any Supreme Court decision that has concluded to the contrary is wrong — yes, including the 2003 law that prohibited the abomination that is partial-birth abortion, and which should have been struck down by the Court for lack of an enumerated power to justify it.

Like the Supreme Court, Congress simply does not have the power to decide this question for the states. That is not what Congress is for, or has ever been for. There is no generalized police power vested in the federal government, and it is not permitted to exercise one simple because Americans feel strongly about the question from both sides.

Dave Kopel and I wrote on this very topic back in 1997.