But wait a minute, I thought us benighted FedSoc types didn’t like laws like that? How we scorned the expansion of the commerce clause into a blank cheque; “if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” Did we not cheer when Lopez and Morrison began to chip away at what Justice Thomas called “this rootless and malleable standard . . . [that] encourage[s] the Federal Government to persist in its view that the Commerce Clause has virtually no limits“?

Calling it a fig leaf seems over generous. The act briefly and obliquely mentions it once, as if as an afterthought; it’s tantamount to flaunting its status.

Neither can I accept Rufus’ argument about the due process clause; while I think it’s a stretch of the due process clause in any instance, the more fatal problem is that one would have to demonstrate that the original understanding of “person” in 1868 included an unborn child, a contention I think to be a forlorn prospect. I would be delighted to be shown some research that indicates conclusively (or even at all) that they were.

I guess this includes those with magazines in their waiting room from other states, but so it goes. But, hey, I agree with the sentiment. A column in National Review did as well. If this reaches the SC, Justice Thomas should have a concurring statement that he only is upholding the law because the Commerce Clause claim was not raised.

Sure it does, it justifies it with the interstate commerce clause, the clause that can justify anything. In that respect the law is narrow, however that is neither here nor there since the intent of the law is to overturn Stenberg.

There’s a great quote from Justice Scalia, “[i]f you care passionately about something has become the only test to determine if something is constitutional. How passionately do you care?” This act is a clear demonstration of that much, since its own sense of itself is overwhelming moral passion – passion that I share, granted – that this is a terrible act, and that somebody should step into the breach and ban it. But, as Justice Black put it, “[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution” (Reid v. Covert, 354 U.S. 1) (1957); that holds as much true when it means striking down a statute I agree with as when it means striking down one I do not agree with.

Simon raises an interesting question. Have ANY of the litigants challenging the Partial Birth Abortion Ban Act in the various federal proceedings even raised the Commerce Clause issue? My sense is that it is such a guaranteed loser that they may not have bothered.

The panel notes that the District Court’s holding:

rested on its determination that the Act violated the Constitution in three respects. First, the district court found the Act unconstitutional because it imposed an undue burden on a woman’s right to choose to terminate her pregnancy before viability . . . Second, the district court found the Act unconstitutionally vague. The court reasoned that the term “partial-birth abortion” was not recognized in the medical community, and the phrases “living fetus,” “deliberately and intentionally,” and “overt act” failed to put physicians on notice as to what procedures would violate the statute. As a result, the district court found that the Act deprived physicians of fair notice and encouraged arbitrary enforcement . . . Third, the district court found the Act unconstitutional because it failed to include a health exception.

(Slip op. at 12) The Ninth Circuit panel accepts this rationale almost as is:

We hold that the Act is unconstitutional for three distinct reasons, each of which is sufficient to justify the district court’s holding. First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women’s ability to obtain previability abortions. Third, it is unconstitutionally vague, depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement.

(Id. at 16).

The Ninth Circuit failed to contemplate the obvious question on which any action against the FPBA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute’s terms are “unconstitutionally vague,” and it becomes irrelevant whether it includes a health exception.

For these reasons, I concur only in the judgement – situation normal where the Ninth Circuit is concerned, see The other side of the knife, 11/4/2005 (concurring in the Fields v. Palmdale School District verdict). I would declare the act unconstitutional because it lacks a basis in the Constitutional grant of power to Congress.