Partial Birth Federalism

The Senate has passed a ban on the partial-birth abortion procedure. The ban is expected to pass the House and President Bush has stated that he will sign the bill.

It is true that partial-birth abortion is a morally repugnant procedure that rarely has anything to do with the health of the mother. However, as Glenn Reynolds astutely points out, the legal and constitutional ramifications of this are huge.

The Supreme Court established precedents limiting the use of the commerce clause for federal regulation in two cases: Lopez v. United States (1995) and United States v. Morrison (2000). In both cases, Justices Rehnquist, Scalia, Thomas, O’Connor, and Kennedy all agreed that the commerce clause cannot be used for such things as limits on gun possession in schools and civil penalties for sexual assault on the federal level. It was an understanding of federalism that tried to limit the power of the federal government in usurping the police power of the states as well as reaffirming the concept of limited federal powers under the Tenth Amendment.

As much as I have issues with abortion, I also have to acknowledge the principles of federalism, and I don’t see sufficient justification under the criteria established by Lopez to uphold the ban, unless the Court decides to overrule its own precedents. It is clear that this ban will face a significant legal challenge, and I have the feeling that the Court’s opinions on abortion and their opinions of federalism will face a major conflict in the process.

One thought on “Partial Birth Federalism

  1. Your website is one of the first conservative websites that has pointed out the real issue in this case. I will definitely be checking out your website in the future.

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