That Sticky Matter of Jurisdiction

In a subcommittee of the House, the bill to ban the grisly “D&X” abortions passed its first hurdle in Congress. In a straight party line vote, seven Republican s voted to ban this procedure, which offers, as its point of genius, puncturing the head of the child, and sucking out its brains, so that the body may be removed, without obstruction, in one — shall we say — clean sweep.

Not a single Democratic vote could be found to condemn this method of abortion. Of course, with this panel of the House Committee on the Judiciary, the Democratic membership has been boiled down to the hardest of hard core pro-abortionists, such as Pat Schroeder (CO) and Barney Frank (MA).

But passed over for a moment in the sweep of this measure is the vexing question of just how Congress may reach these abortions and forbid them. That question has proved far more troubling to the Republicans, who have been far more concerned than the Democrats with the grounds on which the power of the federal government is extended. And so the Republicans have been inclined to bite their lips over this provision in the new bill on the “D & X” or the so-called “partial birth” abortions. The bill picks out, as the focus of its condemnation, “Whoever, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus.”

One scholar who supported this bill decorously declined to testify, rather than embrace the fiction contained here, that the power of the Congress to legislate on abortion was grounded in the Commerce Clause. I had the occasion to review, in this space, over a year ago, the elaborate rituals of implausible argument produced by Professor Laurence Tribe of the Harvard Law School, as he sought to spin out the formulas of the Commerce Clause to cover the Freedom of Choice Act. And so, in the tradition of those venerable fictions, Tribe argued that, if States were free to impose restrictions on abortions, there would be more people driving on the highways, seeking out States with easier laws. In this vein, he could write darkly of “the human toll taken by this highway of anguish and frustration.”

This style of argument had become accepted since the litigation over the Civil Rights Act of 1964, and nothing in this argument had to hinge on anything as elusive as empirical evidence: There was no need to show even a reasonable estimate of the number of black people who were discouraged from traveling between the states because they were inhibited by the prospect of racial discrimination. It was simply postulated that many black people were discouraged. And from that assumption an extrapolation was made of the dinners foregone, the linens, cutlery, and meat that were not ordered, the sales not made. In short, the imagination could offer, with the vividness of fact, a vast depression of interstate commerce.

In contrast, the point has been made that there is nothing comparably speculative about the volume of abortions performed every year in this country. That volume has been around 1.25 to 1.5 million. And if it becomes legitimate to draw projections under the Commerce Clause, then it should be even more plausible to draw these inferences: the removal of 1.5 million new babies every year will surely depress the market for baby food, diapers, bassinets, toys—to say nothing about the demand, in later years, for first cars and college educations.

Conservative lawyers and politicians have sought for years to resist the facile extension of federal authority under the Commerce Clause; and yet it should be apparent now that a quicker cure is available: simply show liberals that the Commerce Clause could be used even more powerfully to legislate against abortion, and nothing is more likely to discredit, overnight, a tool that has been central to liberal jurisprudence since the New Deal.

The same arguments under the Commerce Clause were hauled out again to support the bill to ensure Freedom of Access to Clinic Entrances, and that bill was passed, with votes from both political parties. Still, that artless move could have its uses for the pro-lifers. Without joining the charade over the Commerce Clause, they could simply say, with innocence, that both parties in Congress have now taken us past the threshold of jurisdiction: if members of both parties agree that Congress can legislate to protect access to abortion clinics, then Congress can evidently legislate on abortion, or on the things that go on within those clinics. Whatever Congress used then as the basis for passing the Freedom of Access Act may be taken as the ground of the law now, as Congress votes to bar the “D & X” abortions.

Fair enough, except for one recent little thing: at the end of April, the Supreme Court cast its first judgment in nearly 60 years in rejecting a federal law passed under the Commerce Clause. The law in question sought to ban the use of guns in the vicinity of schools. In striking down this law, in US v. Lopez, the Court took the first step in rejecting the kinds of bizarre rationales that were treated seriously as arguments under the Commerce Clause. But until the case reached the Supreme Court, the lower courts had been upholding the Gun-Free School Zones Act, along with its rationale under the Commerce Clause.

At the same time, the Freedom of Access Act was being contested in the courts, and the judges upholding that act had been citing, as confirmation, the decisions in the lower courts on the Lopez case! Apparently, the recognition has not quite broken through yet: the decision of the Supreme Court in the Lopez case would now call into question the ground on which the lower courts have been upholding the Freedom of Access Act. To the extent that the ban on “partial birth abortions” rests on the Commerce Clause, the Lopez case would imperil this new act as well.

And with good riddance—not for the bill, but for the spurious reliance on the Commerce Clause. Pro-life scholars would rather make an argument under the Fourteenth Amendment, but the Fourteenth Amendment deals with the action of states, operating through the laws. It would require a rather more complicated argument to show how the Fourteenth Amendment would reach the decisions taken by private persons to perform abortions. In the face of these difficulties, the pro-lifers could get around the problem altogether in the style taken by liberal Democrats over the last 30 years, to legislate by indirection—to legislate, that is, without really legislating: one could simply attach conditions for the enterprises that receive money from the federal government. In this manner, Congress does not presume to reach local schools or clinics counseling birth control. Congress merely offers grants and lays down conditions, and if people do not find the rules congenial, they may merely forego the grant. In this gentle manner, the federal jurisdiction has been extended over the last thirty years without the need to show how the Congress may legislate on any of these matters.

But with the addition of the so-called Civil Rights Restoration Act of 1988, liberal Democrats have handed the pro-lifers an even more powerful tool, if they would care to make use of it: even the most indirect aid may be taken as the definitive sign of “federal aid.” And so, a student receives a loan from the federal government, and a private college becomes subject, in all of its phases, to the full panoply of federal regulations. It would merely remain, for Henry Hyde and his colleagues, to use the same formulas that were engrafted on the law by the liberals. A private clinic or hospital may come under the federal regulations then, if any patient receives Medicare, but even less than that: if any receives a social security check, a student loan, food stamps, perhaps even a refund from the IRS. And through this device, again, the federal government may bar the awful procedure of D & X abortions without the need to explain how Congress can legislate on the matter.

But it seems not to have occurred to the Republicans in Congress that they can take this route; and for reasons of constitutional fastidiousness, they may be reluctant, quite rightly, to take it. If Congress legislates, it should legislate honestly, directly, and it should be able to explain the grounds of the federal authority. The actual ground of the law in this case is not so contrived or complicated, but the most direct explanation may also be the hardest for our lawyers to understand. It would begin with the fact that the problem of abortion, over the last twenty years, is a problem created distinctly by the federal courts. With Roe v. Wade, the Supreme Court indirectly nationalized abortion. In one stroke, the Court swept away almost all of the laws in the separate States that dealt with abortion. And for the past 20 years, local legislatures have been forced to shape their legislation in the mold permitted to them by the federal judges.

But once we recognize the massive presence in this issue of the federal courts, we may suddenly notice the key to the jural problem that lawyers and politicians never quite seem to see, even while they strain over the puzzle. A former adviser to President Bush asks me earnestly, “Can’t we just agree to keep the federal government out of this issue?” and he is apparently taken aback when I respond, “Yes, if by that you mean the federal courts as well.” Are the federal courts not part of the “federal” government? Chief Justice Marshall once offered, as an axiom, that any issue that arose under the Constitution and laws of the United States has to come within the jurisdiction of the federal courts. And yet, even jurists are persistently surprised by the corollary of that axiom: any issue that comes within the competence of the judicial branch, must come, presumptively at least, within the reach of the legislative and executive branches. For how is it that the federal courts are competent to address abortion in all of its dimensions, while the deep-dish thinkers of the law ponder deeply over the question of whether Congress may legislate on the same subject?

Of course, there are complications here that cannot be papered over. There are powers of the executive, in directing the military, that should never come within the reach of judges. But for the most part the axioms of the American Constitution would establish a presumptive rule that should be, for the pro-lifers, all that is required: if the national courts can reach judgments, in concrete cases, on any matter, then the national legislature can flesh out the principles, on the same subject, with legislation that is impersonal, prospective, and not bound to the parties in litigation before the courts. Or to put it another way, if the courts can hand down judgments on abortion, then, on the same subject, cast in the same terms, the Congress must be free to legislate.


Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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