And Do You Dare Call It Partial-Birth Abortion?

by Kathryn Jean Lopez

The answer may be: Perhaps, if you’re desperate enough.

Leading feminist activists tend to hate the phrase partial-birth abortion because of the visual nature of the language. As allies of New York governor’s talk about a “tweak” to protect against partial-birth abortions in the state, Ed Mechmann emails to point out that it is going to take quite the tweak to Andrew Cuomo’s abortion-expansion measure to do so:

Apropos of a “tweak” to the abortion bill, it’s useful to understand that the federal Partial Birth Abortion Ban Act (18 U.S.C. 1851) does not provide sufficient protection against partial birth abortions being performed in New York. 

Here’s why.

The federal law has limited jurisdiction, permitting prosecution only if person commits a partial birth abortion “in or affecting interstate or foreign commerce”.  The bill thus rests entirely on the Congress’ jurisdiction under the Commerce Clause of the Constitution.   Recent Supreme Court cases make it unclear how far that jurisdiction runs, and thus whether the federal law would reach all partial birth abortions.  Certainly, the federal bill would not permit prosecution unless it could be proven that it has a substantial impact upon interstate commerce.  That could leave many partial birth abortions unaffected, and thus perfectly legal.  This is why a specific state ban on the procedure is necessary, particularly if an expansive new standard for late-term abortions is enacted by way of the Women’s Equality Act.

The Supreme Court has in recent years significantly restricted the authority of Congress under the Commerce Clause to reach acts that are traditionally within state jurisdiction.   For example, in United States v. Morrison, 529 U.S. 598 (2000), the Court struck down sections of the Violence Against Women Act, holding that Congress did not have the authority under the Commerce Clause to reach a rape case, since that criminal act did not “substantially affect” interstate commerce.   See also United States v. Lopez, 514 U.S. 549 (1995) (similar ruling regarding the Gun-Free School Zones Act).  People also need to recall that, in the decision upholding the constitutionality of the federal Partial Birth Abortion Act, the Court specifically did not examine the question of Congress’ authority under the Commerce Clause.  See Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (concurrence of Justice Thomas)

So, a “tweak” that just shows some recognition of the existence of the federal law, or a bland statement that the WEA will not affect it, does nothing to prohibit partial birth abortion in New York.

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