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Is Partial Birth Ban Constitutional?


Rachel DiCarlo reports that Congressional Republicans drafted the bill to ban partial-birth abortion with an eye toward satisfying Justice O’Connor. O’Connor provided the fifth vote to strike down a Nebraska partial-birth ban in Stenberg v. Carhart. Yet DiCarlo makes no mention of what may be the greater constitutional problem for the bill: It is questionable whether the Constitution grants Congress the power to regulate abortion. Congressional proponents will claim that the law was adopted pursuant to Congress’ authority to “regulate commerce . . . among the several states,” but this is a stretch. Abortion no more “substantially affects” interstate commerce than guns in schools or violence against women. To be constitutional, bans on partial-birth abortion should be adopted by the states. And to that end, the Bush Administration is defending an Ohio partial-birth ban before the U.S. Court of Appeals for the Sixth Circuit.


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