Federal Partial Birth Abortion Ban and Gonzales v. Carhart

In Gonzales v. Carhart, yesterday's partial birth abortion decision, the mostly liberal advocates of virtually limitless congressional power under the Commerce Clause are to a certain extent reaping the fruit of what they sowed in cases such as Gonzales v. Raich.

In the argument, Justice Stevens and Justice Ginsburg expressed concern that a federal ban on partial birth abortion - particularly one that extends to free abortion clinics - may exceed Congress' Commerce Clause authority, which only gives it the power to regulate "commerce . . . among the several States:" That concern is, in my view, well-taken. However, it directly contradicts the Court's decision in Gonzales v. Raich, which endorsed virtually unlimited congressional power over anything that Congress has a "rational" basis to believe is even remotely connected to interstate commerce. Ironically, Stevens wrote the majority opinion in Raich, and Ginsburg signed on to it.

I have warned that virtually limitless federal power can be used to uphold far-reaching conservative legislation, as well as liberal, and that it is far from clear that unlimited federal power is in the interests of liberals in an era when the federal government will often be controlled by conservative Republicans. And here is a prime example in the federal partial birth abortion ban of an Act supporting my point.

More importantly in a highly diverse society most such controversial social issues are better handled at the state, local, and private sector levels than through a one-size-fits all federal solution. Federalism debates often come down to a matter of whose ox is being gored in a particular case, which is perhaps understandable. However, there are also important systematic advantages of decentralization that are lost under a central government with nearly unlimited power.

Perhaps one consequence of Gonzales v. Carhart will be at least a modest increase in appreciation for federalism among both liberal and conservative jurists.