Constitutional, But Will Be Found Unconstitutional...
[Patterico]

President Bush is poised to sign the Partial-Birth Abortion Ban Act into law -- a bill whose most visible opponent was California Senator Barbara Boxer. Abortion rights advocates are vowing to challenge the measure in court, and it appears almost inevitable that the constitutionality of the ban will be resolved in the Supreme Court. Placing aside issues of federalism (which Xrlq discusses in the accompanying piece), I believe that this bill is constitutional. However, I believe that it will be found to be unconstitutional.

The language of the bill is strikingly combative. The bill argues that the last Supreme Court to address partial-birth abortion, Stenberg v. Carhart, was based on flawed factual findings. The trial court in Stenberg specifically found that the partial-birth procedure can minimize health risks in certain circumstances, and indeed was actually safer than other procedures. Congress says that the trial court's findings were wrong, and makes its own wholly contrary findings. Congress then insists that the Supreme Court defer to these findings, and throws down the gauntlet with this statement:

These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care, and should, therefore, be banned.

Translation: in your face, Supreme Court!

With aggressive statements like these, Congress has essentially characterized the issue as a power struggle. It's smackdown time: Congress vs. the Supreme Court. This is why the bill will ultimately be found unconstitutional. The thing about power struggles between Congress and the Supreme Court is, the Supreme Court gets to decide them. This is a principle as old as Marbury v. Madison.

The Supreme Court will probably not feel compelled to defer to Congress's judgment as to the safety of partial-birth abortion. The Court will reject Congress's position politely, of course -- on the surface. The Court will explain that Stenberg was based only in part upon the trial court's findings. Also important to the decision was the significant disagreement in the medical community on the necessity for the procedure, as reflected in various amici briefs as well as testimony in the trial record. But if you read between the lines, the ultimate message will be: right back at ya, Congress!

In demanding deference to its factual findings, Congress has a valid point. The facts underlying the partial-birth abortion debate are hotly contested by both sides. The public has a strong interest in the subject. Yet the resolution of these facts has been largely decided, not through public debate, but by some trial judge in Nebraska -- after a trial that received virtually no public attention. Look at it this way: this trial received only a tiny fraction of the coverage that Kobe Bryant's preliminary hearing has received. Shouldn't issues of such public importance be decided in a more public way -- by elected representatives of the public?

This is the argument that Justice Scalia made in his dissent in Casey: that such political choices should be left to the political branches of government:

The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.

Critics raise several arguments to the contrary. The least serious argument is the one most often heard: that the right to abortion may be found, somehow, in the Constitution of the United States. Most legal scholars on both sides (at least the intellectually honest ones) will admit that Roe v. Wade has no real basis in the Constitution. As Justice Scalia explained in his Casey dissent,

the best the Court can do to explain how it is that the word "liberty" must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.

Perhaps the most egregious expression of value-judgment-as-constitutional-principle is Justice Kennedy's oft-ridiculed phrase from Casey: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This open-ended warrant to discover more and more constitutional rights finds no support in the actual language of the Constitution. No serious scholar argues otherwise.

The second argument goes something like this: even if Roe was an exercise of raw judicial power, the Supreme Court can't just go around overruling precedent willy-nilly every time there is a change in the makeup of the Court. Therefore, we should respect Roe and Casey, regardless of the validity of their constitutional underpinnings.

The problem with this argument is that these decisions do not deserve to be adhered to, because they set forth a standard that is unworkable. Under Casey, courts must determine whether the bill places an "undue burden" upon the supposed right to choose. This "test" is so nebulous that it is no test at all. As Justice Scalia explains, whether a statute creates an "undue burden" on abortion is a

conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.

Because there are no consistent standards to be applied, Scalia argues, the argument isn't over application of clear, neutral principles. Rather, the argument is over whose value judgment prevails. Accordingly,

those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

A majority of legislators who voted in favor of the Partial-Birth Abortion Ban Act may well have agreed with this statement, but did not have the luxury of saying so. Unless the Constitution is amended, Congress must accept the Supreme Court's landmark abortion decisions (Roe and Casey) as correct statements of constitutional law. Congress can't just say that those cases were wrongly decided. But they were.

For the reasons in Justice Scalia's dissents in Casey and Stenberg, I think that the Partial-Birth Abortion Ban Act is constitutional (if it can survive the Tenth Amendment arguments that Xrlq discusses in the accompanying piece) . Unfortunately, Justice Scalia's rational and reasoned view has not carried the day so far, and it probably won't this time around either. Ultimately, I am afraid that the new law will accomplish nothing other than to give us the chance to read another brilliant and persuasive dissent from Justice Scalia.

Patterico is proprietor of the blog Patterico's Pontifications

Our Partially Constitutional Partial Birth Abortion Ban...
[Xrlq]

Patterico argues that the federal Partial-Birth Abortion Ban Act of 2003, which passed overwhelmingly last week, is constitutional, although he concedes that it will probably not be upheld by the courts. He makes a convincing case, as far as it goes. However, neither he nor any of the major opponents of the ban – including both California Senators – discusses the real constitutional flaw with this federal ban: Congress has no more constitutional authority to ban partial-birth abortion than it does to ban "total-birth abortion," i.e., murder. That's part of the police power, which Constitution clearly leaves to the states.

Interestingly enough, the authors of the federal ban don't make much of an effort even to pretend that the Partial Birth Abortion Act is intended to regulate interstate commerce, coin money, build post roads, or act according to any of Congress's other constitutionally enumerated powers. Section 2 of the Act lists 14 Congressional "findings" (or 28, depending on how you choose to count them) intended to justify this bill. All are aimed at justifying a ban on partial-birth abortion on its merits. None provide any justification whatsoever for getting the federal government involved. The closest thing to a jurisdictional hook is the throwaway language "in or affecting interstate or foreign commerce" in the operative language of Section 1531(a), a boilerplate phrase routinely used by Congress in a cheap effort to circumvent the Tenth Amendment. It is unlikely that this throwaway phrase would have saved the Gun Free Schools Act in U.S. v. Lopez, 514 U. S. 549 (1995), and in any event, it is much more perfunctory than the "mountain of data" on rape and interstate commerce that failed to sustain a federal rape law in U.S. v. Morrison, 529 U.S. 598 (2000). If there is some subtle argument that effectively distinguishes intrastate guns in schools and intrastate rape cases from intrastate abortions, I have yet to hear it.

Indeed, last week's bill was almost written as though Congress thought the Lopez and Morrison cases never existed, or as though a "ha ha, just kidding" clause had been added to the Tenth Amendment in the meantime. Given the substantial overlap between advocates of federalism and opponents of partial-birth abortion, I have a difficult time accepting this as an innocent mistake. What I do see, at best, is a too-clever-by-half strategy to get the issue before the Supreme Court one way or the other, and then hope that the plaintiffs who challenge the law will conveniently "forget" to raise the Tenth Amendment at all. Given the hostility of many pro-abortion zealots toward the Tenth Amendment, this strategy might actually work.

More likely, however, some libertarian group will intervene in the case and raise the Tenth Amendment whether NARAL and NOW like it or not. Once that happens, the best proponents of the ban can hope for is that the Court will address both the substance of the law and the federalism problem, and then issue a fractured ruling that relies in part on the Tenth Amendment to strike it down. If that happens, and it becomes clear that the law would have been upheld but for the Tenth Amendment problem, the pro-abortion zealots will end up with a Pyrrhic victory, as the Supreme Court will have effectively blessed the language of the law they struck down as a "model act" that can now be enacted in every state. This result is the best outcome that true conservatives – judicial as well as political – can hope for.

If the Supreme Court follows either Stenberg or Morrison to the letter, the partial-birth abortion ban will be struck down 5-4. If it applies both precedents, the margin will be 9-0. Either way, the law is going down. Regardless of the outcome, Congress can scarcely be faulted for passing a statute that is ultimately held unconstitutional under Stenberg, an absurd decision that has no basis in the Constitution every Congressman is sworn to uphold. The same cannot be said of those who voted for of a statute that none of them could possibly have mistaken for an honest effort to “regulate Commerce with foreign Nations, [] among the several States, [or] with the Indian Tribes.”

Xrlq is proprietor of the blog damnum absque injuria and a sometime attorney. [go to Xrlq index]