Prof. Adler says that “Congress always has an affirmative obligation to identify the source of its authority whenever it enacts legislation.” Whence does that obligation derive? Is there a constitutional provision that says that Congress has to do this? Is there a provision that says that the Supreme Court should strike down any law that does not fulfill this supposed obligation? If Adler is not suggesting that the Court must strike down a law on this basis, then it appears that his argument does indeed depend on my argument’s being wrong. My argument, I should make it clear, was not that the Court should uphold a ban on partial-birth abortion because it “might” be constitutional but that it should uphold it because it is constitutional.
Adler claims that even within the terms of my equal-protection argument, a law against partial-birth abortion fails because it does not provide full equal protection to the unborn. I do believe that Congress would be within its constitutional rights to ban any method of killing embryonic and fetal human beings. But to have the power to ban a set of actions seems to me, at least in this case, to imply the power to ban any subset of them. All states would ban the puncturing of Adler’s skull and the sucking out of his “intra-cranial contents,” and the same protection should be given to the unborn, whether or not Congress is yet prepared to provide equal protection in other respects.