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The time is several years in the future. The Partial Birth Abortion Ban Act of 2003 is the law of the land in this future. It has been challenged in a lawsuit, and the issue has reached the Supreme Court. The conversation set forth below, between an undetermined justice and his law clerk, may never actually take place. But something very close to it surely should. Justice: I see we have the partial-birth abortion case scheduled for next week. The first time we got this issue, back in 2000 in Stenberg v. Carhart, we held that the law had too many problems. I guess that Congress has fixed them, and that we can uphold the law now? Clerk: As you remember, there were some specific findings by the lower court in Stenberg on the medical necessity for such procedures to preserve a woman’s health and the limited risk of such procedures to the woman, that the majority was unwilling to set aside. Congress did remedy that by making its own findings — many pages of them — so maybe that part is OK. Justice: You said Congress made findings? Did the senators or representatives hold a trial? Clerk: Not that I am aware. Justice: What about hearings? Clerk: Well yes, there were some. But members of Congress don’t have to sit through hearings like judges and juries do. So I’m not sure what impact those findings would have anyway. In any event, the members surely didn’t hear from the doctors who are the plaintiffs in this case. Justice: Hmm, perhaps those findings won’t help us all that much, then. Are there any other problems you noted? Clerk: Well, this law was passed by Congress, unlike the earlier ones that were all enacted by the states. Justice: That’s a problem? Don’t tell me there is an issue about Congress’ power to enact laws like this one? Clerk: I’m afraid there is at least a question. The Court has been pretty strict lately in sticking to the principle that the federal government has limited powers, and that Congress can only legislate in areas specifically set out in the Constitution. Justice: So a state might be able to enact this very same law, but Congress can’t? What about the supremacy clause and federal power? Clerk: I’m afraid that won’t get us very far, unless we can find some specific grant of power for Congress to act. The supremacy clause assumes a valid exercise of congressional power, which is our question. Justice: What about the commerce clause? That’s been given a very expansive reading, and it should be a real help here. Clerk: Well, it might have worked until 1995. But then, in United States v. Lopez, the Court held that there are limits on the use of the commerce clause. That case involved a law making it illegal to possess a gun in or near a school. The Court tossed out the conviction on the ground that the commerce clause — the basis for the law — didn’t reach local activities like that. Justice: I seem to remember that there were hints that if the law had required that the guns themselves had been sold or even sent in interstate commerce, it would have been valid. Surely, Congress must have provided that this law would apply only if the equipment used for the abortion had been sent from one state to another, or something like that. Clerk: I’m afraid not; Congress doesn’t even mention equipment moving in commerce in its findings, let alone in the operative part of the act. Justice: The other commerce clause case, back in 2000 in United States v. Morrison, involved the Violence Against Women Act. And one of the reasons that the Court said the commerce clause did not work there was because the violence was not commercial. How about this law? Is there any requirement that the doctor get paid for performing the abortion? Clerk: No. And in fact, the plaintiffs here are prepared to do these procedures for nothing, in part because they are so rarely done in any event. Justice: Well are there any other avenues that might be used to uphold the use of the commerce clause? Clerk: Yes, but only in theory. Some parts of the Violence Against Women law applied only where the victim or the perpetrator traveled in interstate commerce, and those parts were upheld by the lower courts and never reached this Court. The trouble here is that there is no such requirement in this law. Justice: Well, what does this partial-birth abortion law say if it doesn’t say any of those things? Clerk: This is it — I’ll read only the relevant part: “Any person who, in or affecting interstate or foreign commerce, knowingly performs a partial birth abortion” shall be guilty of a crime and may be fined and imprisoned for up to two years. Justice: Wait a minute. Is that all? Clerk: I’m afraid so. Justice: I’m not even sure what that means. Do they mean on an airplane? Or a train? Or in the middle of the George Washington Bridge? These procedures are very difficult to do and require lots of equipment and help. I’m sure no one would do them except in sophisticated hospitals. Clerk: That’s exactly what all the plaintiffs say in their sworn testimony. They also argue that they have no idea what the law means, or when they might be violating it, especially the commerce part. So there might be a due process violation here, too, because it’s a criminal statute. Justice: Well, I can see their point on that issue. I have no idea what it means, either. It’s also pretty hard to see how a single partial-birth abortion can affect interstate or foreign commerce. So I don’t see what the word affecting accomplishes. Clerk: Do you think that perhaps the “knowingly” part might help in case someone says they don’t know what it means? Justice: No, that only seems to allow a doctor to say that she thought she was doing something else — like taking out an appendix — when what was really going on was a partial-birth abortion. Aren’t there any other clauses someplace in the Constitution that might be used to sustain this law? Clerk: Congress could tie federal funding for hospitals to their agreement not to perform these procedures. But that’s not what this law says. And as for the power of Congress to enact laws under the 14th Amendment, this Court has pretty well taken the teeth out of that power lately, when the state is not the defendant. That was the gist of the other part of Morrison. Justice: Well, what was Congress thinking when it passed this law? Clerk: It seems to me that Congress was trying to make a statement that the members don’t like partial-birth abortions, that they didn’t like what this Court said about them in Stenberg, and that they wanted everyone to know how they felt about those issues. Justice: That’s all well and good. But why did they have to say all that in something called a law, and make it a crime? I thought laws were written to be enforced. I can’t imagine Congress thinking that this law would ever be followed, let alone upheld by this Court, even by the justices who believe that the states have the right to ban all abortions and surely have the power to forbid partial-birth abortions of the kind covered by this bill. Clerk: I’m sure you’re right. I don’t think the people who sponsored this bill cared about anything except making a statement and being able to blame someone else for something they don’t like. Which looks like it will be this Court, unless we can invent some new doctrine to bail Congress out. Justice: I agree. It’s hard to imagine a bill that is more unconstitutional. But I am sure we could find one if we tried. Alan B. Morrison is director of the Public Citizen Litigation Group. His practice involves constitutional litigation, but he has never taken part in any case raising issues regarding the constitutionality of restrictions on abortions.

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