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July 28, 2003, 11:25 a.m. Moral Federalism and H.R. 760 What's wrong — and right — with the House ban on partial-birth abortion. By Kimberly Hendrickson

t's been a rough few weeks for moral federalism. For those distracted by the Court's pronouncements on Texas sodomy, a different drama unfolded closer to the capitol this month. On the morning of July 1, Virginia's partial-birth-abortion ban went into effect. On the afternoon of July 1, District Court Judge Richard Williams prohibited its enforcement. According to the Washington Post, Judge Williams was so disdainful of the law that he could hardly wait until the end of arguments to issue his injunction. Like the Lawrence v. Texas case, Richmond Medical Center v. Hicks stands for the proposition that local moral approbation has little or no place in our constitutional system.

The Virginia developments are not remarkable in themselves — over 30 states have enacted partial-birth bans; most have been struck down by judges-but they make the current debate over a national partial birth abortion ban more pressing. H.R. 760 was passed by the House in early June. It is currently being reconciled with the Senate's earlier version. At the moment, the bill reads like it was written by a group of precocious law students. The Supreme Court struck down Nebraska's partial-birth-abortion ban in 2000, but the House staffers did them one better: H.R. 760 contains language that the Justices deemed missing in the Nebraska law, and gets around the requirement for a health exception.

The legalistic nature of H.R. 760 does not mean it's a snoozer of a bill. Nothing riles in modern American politics like abortion, and since this is the first national criminalization of the procedure that may actually fly since Roe v. Wade, it has invited close attention. But as the lawyers in the Capitol congratulate themselves for having skirted the Stenberg case, and Kate Michelman predicts the end of female health care, it's worth stepping back and asking a basic question: Should Congress be drafting morals regulation? Aren't these sorts of laws more legitimate if they are created by state legislators?

H.R. 760 is a moral law — about as explicit as one can get. The bill is based, according to its opening section, on a "moral" and "ethical" consensus that the procedure is an "inhumane" business. As the bill's sponsor, Steve Chabot (R., Ohio), explains, this sort of thing should be verboten in a "civilized nation." H.R. 760 attempts to end an immoral activity. It will, presumably, also improve the nation's moral well-being. President Bush, on this point, has been explicit: He supports the ban because it builds "a culture of life" among citizens.

One doesn't have to be a libertarian to be skeptical of this reasoning. In fact, one need be only vaguely friendly to federalism. There is something important to be said for local control over moral issues — namely that the Constitution grants no moral authority to the federal government. Indeed, it is silent on this and related topics, like kicking dogs or being respectful of your mother. The student of The Federalist reasonably assumes that moral instruction, like trash collection, was too mundane to be taken up by the Founders ("the regulation of the mere domestic police of a state," reassured Hamilton in No. 17, "hold(s) out slender allurements to ambition"). Of course, there are constitutionally recognized national rights that cannot be ignored by local legislators for ostensibly moral purposes (Massachusetts can't eliminate property rights even if a majority of residents find them immoral).That list, being finite, invites a great deal of local legislative action.

More recently, the Supreme Court announced, in its Lopez and Morrison decisions, that the commerce clause should not be used by Congress as a "hook" for non-economic (i.e., moral and criminal) legislation. Since H.R. 760 is a moral law, passed pursuant to commerce-clause authority (it criminalizes the activity of doctors who are "in" or are "affecting" interstate commerce), it does seem like a fine example of federal overreaching.

But appearances are somewhat deceiving. There are reasons to doubt H.R. 760's legalisms (how many abortions are really "in" interstate commerce? How many partial-birth procedures "affect" commerce in a meaningful way?), but not its larger project. There are two compelling — and constitutional — reasons Congress should regulate morality, both in abortion and other contexts. The first concerns containment. Immoral activity (unlike trash collection) does not occur neatly within state borders. Federal laws are necessary to counteract the effects of cross-border action. Secondly, Congress should regulate moral issues because federal courts have already indulged in overreaching. States have been precluded from passing moral laws (see Lawrence, see Richmond v. Hicks); congressional action is the only workable option on the table.

The idea of moral containment is nothing new. Congress has long regulated moral issues, most typically through the commerce clause, as a way to facilitate local moral regulation. The most striking example of this is the Webb Kenyon Act, passed in 1913, which demands that shippers of liquor respect "dry" or "wet" state laws when moving their products through interstate commerce (without this law, a dry state would have no power to ban shipments of alcohol across its borders). Similarly, the Lottery Act was passed in 1895 to keep interstate channels free of lottery tickets. By keeping these byways clear, states had the option of prohibiting lotteries without fear of contamination. A related and more recent example is the 1996 Defense of Marriage Act, which provides that no state outlawing gay marriage is required to give effect to the laws of states that do.

These federal enactments may or may not have a specific end in mind — Webb Kenyon is neutral on liquor; DOMA, with its federal definition of marriage, is not neutral on gay unions — but they are intended to protect state legislative authority, not replace it. These laws have been consistently, and rightly, upheld by the Supreme Court, as they serve an important constitutional purpose. A state powerless to prohibit banned material or activity from within its borders has no meaningful moral authority.

There are, of course, national economic laws that are intended to set national moral standards. The Child Labor Act of 1916 did more than enforce state child-labor laws — it strove to create, through the commerce clause, a national child-labor standard (under its terms, no manufactured goods made by the preteen set would be allowed in interstate channels). The Mann Act, prohibiting interstate debauchery, was, depending on the era, used to supplement state laws and to enact tough federal standards. Title II of the Civil Rights Act of 1964, banning racial segregation in hotels, restaurants, movie theaters, and other public accommodations, used the commerce clause to change private behavior. These federal moral laws have been generally upheld, but they rest on a less certain constitutional basis. Congress, using its commerce power, may be able to legally "lead" moral law in areas like adultery and race, but the result is not very encouraging for moral federalism.

Does H.R. 760 operate more like a facilitator of moral federalism or a national directive? Its language suggests the latter: In banning the procedure when it "affects" interstate commerce, Congress invites a broad reach. Any doctor doing business affects commerce in some way, particularly if such doctors' activities are considered in the aggregate (a standard method of commerce-clause analysis). Congress, in passing this ban, is attempting to craft a one-size-fits-all moral solution. While this may be good news for those who advocate national abortion standards, it is less attractive for those who think that states have a moral authority worth saving.

Still, H.R. 760 isn't far off the mark. There is a real need for a partial-birth-abortion ban that promotes state preferences, for there is a real risk of one state's partial-birth ban being thwarted by residents of another state. Doctors in state A (which does not have a ban) will have many incentives to cater to residents of state B (which does have a ban) and flout its moral regulation. A federal law prohibiting cross-border medical transactions and/or criminalizing the activity of physicians who perform the procedure on out-of-state residents is therefore good for both states and federalism. These types of laws would help preserve both state A's and state B's moral distinctiveness.

Similarly — and more controversially — a federal law could be passed that discourages movement in the other direction: Residents of a ban-enforcing state could be precluded from traveling across state lines to get around home-state restrictions. (A separate abortion bill is currently being considered by the Senate — the Child Custody Protection Act — that operates on this principle. The bill prohibits transporting minors across state lines for abortions in order to circumvent home-state rules of parental notification.)

Of course, since states like Virginia do not have the authority, at present, to ban partial-birth abortions, these are moot considerations. The Supreme Court, in Stenberg, found a national right to dilation and extraction (or, more accurately, the safeguards that go along with a national right to abort) more persuasive than local moral approbation. Interestingly, though, it is now — when states' prerogatives are highly constrained — that a national partial-birth ban affirming state judgment is most important. By passing this sort of law — a more federalism-friendly H.R. 760 — Congress would effectively set the stage for future state action. It would send the message that state moral laws are important, even if they are currently precluded, and it would serve as a reminder that Stenberg is not the final word on the matter. And who knows — maybe the legal acumen of the bill's drafters can serve as an example: The same crafty language that (may) save H.R. 760 from judicial invalidation could serve as a model for future state legislative action.

H.R. 760 is a too clever-by-half bill that, with some tweaking, could serve a valuable purpose. A national partial-birth abortion ban encourages precisely the sort of democratic debate that decisions like Stenberg cut off. Partial-birth abortion is not, and should not be, a non-negotiable issue. The diversity of laws encouraged by moral federalism may not be the outcome of choice for many lawyers and advocates — there can be no sweeping "wins" under this system — but it's what the Constitution envisions. As an added benefit, it encourages debate and compromise, crucial elements of self-government — which aren't bad for our morals, either.

— Kimberly Hendrickson is a dissertation fellow at the American Enterprise Institute.