The Corner

Abortions “in Commerce”

A helpful correspondent notes that the federal legislation banning partial-birth abortion only applies to such procedures “in or affecting interstate or foreign commerce.” Thus, one could argue, the law does not exceed the limits of Congress’ commerce clause power. (It is arguable because under current precedent Congress only has power over intrastate activities “substantially affecting” interstate commerce.) This clause may prevent a facial challenge to the statute on federalism grounds, but it will ensure litigation over whether a given abortion was performed “in or affecting” interstate commerce. In my mind, it also makes a mockery of enumerated powers.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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