Is there a federal power to ban abortions after 20 weeks?

The state of Texas thrust late-term abortion bans into the national spotlight because of legislation passed there over the heroic/infamous filibustering of state senator Wendy Davis. State laws that ban abortions after the point at which a fetus becomes viable are explicitly constitutional under Roe and Casey, so the fact that Texas wants to ban abortions later in pregnancy is itself not a big deal.

Texas' ban is controversial because

1. it bans abortions after 20 weeks, which is pegged to a specific time (rather than to a specific fetus' attainment of viability) and also weeks earlier than when any fetus is minimally capable of being viable (about 23 weeks); and
2. the argument for having bans set at 20 weeks is that science has now determined that fetuses feel pain at 20 weeks and so aborting a fetus that feels pain is cruel and should be prevented.

This is the hot flavor in anti-abortion legislation, because

1. fighting for the right of women to have abortions this late in pregnancy makes pro-choice activists and legislators look extreme;
2. public attention is focused on the (disputed) assertion that fetuses feel pain, which further humanizes the fetus (a tactic used in the classic anti-abortion film, The Silent Scream); and 
3. it creates an angle-- fetal pain-- for judges to chip away at the jurisprudential logic of Roe and Casey without mounting a direct assault on those decisions. Something similar was done with success in Gonzalez v. Carhart, a 5-4 decision in which the Supreme Court, in essence, found the "partial-birth" abortion technique gruesome enough to allow the federal government to remove it from the toolkit of abortion doctors. Pro-life lawmakers and activists are working to foster, ultimately, a collective judicial epiphany that abortion is a gruesome and cruel attack on little human beings who feel pain. Banning abortions after 20 weeks based on a fetal pain theory is another step (pro-lifers hope) toward that judicial realization-- "there may be some kind of right to abortion, but it can't include this..."

Now U.S. Senator Marco Rubio of Florida wants to get in on the act. I don't doubt that Senator Rubio is pro-life, but the timing of this has presidential primary politics written all over it. This is red meat for a national pro-life conservative base and meant to scare off any potential 2016 challengers to his status as the early front-runner for the Republican nomination.

The problem is that Senator Rubio wants to pass a federal government ban on abortions after 20 weeks, and that is something that should bother conservatives who fret about the federal government legislating in areas of traditional state regulation and outside the constitutional authority of the federal government.

This is a legitimate question: Does the federal government have the constitutional authority to ban abortions after 20 weeks? I have doubts. As a way of working through this question, consider the flimsy justification for the federal ban on the "partial birth" abortion technique found in the Partial-Birth Abortion Ban Act of 2003 (PBABA).

Championed by then-Pennsylvania Senator Rick Santorum, the PBABA is constitutionally housed under the 'Interstate Commerce Clause' (ICC) power in Article I, section 8 of the Constitution, which allows Congress to regulate "commerce among the states." While the PBABA has a long list of congressional findings about partial-birth abortion, Congress did not include a single factual finding about how doctors choosing to use the partial-birth abortion technique (as opposed to an alternative technique to achieving the same medical goal) had a substantial effect on interstate commerce or the national economy. Instead, the congressional authority to ban a particular medical technique was justified in the following way:

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. 

That's it.

Conservatives who squinted really hard to find the individual mandate in the Affordable Care Act unconstitutional should blush at the casual constitutional stretching of the PBABA to include regulating a doctor's choice of which technique to use in a medical procedure.

Even Supreme Court Justice Clarence Thomas, who is a jurisprudential radical but more jurisprudentially consistent than, say, Justice Scalia, looked doubtfully on the ICC basis for the partial birth ban. In Gonzales v. Carhart, the Court decision upholding the law, Justice Thomas wrote the following in a concurring opinion:

I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

Was Justice Thomas uncomfortable or relieved that the Court dodged the question?

Why didn't the litigants challenging the law not raise the ICC issue? Because pro-choice litigants generally do not like the Court's recent Commerce Clause jurisprudence, which has been driven by conservative concern over the expansion of federal power to serve progressive ends during and since the New Deal. Taking this conservative jurisprudential route to attacking the PBABA might constitutionally undermine the broad use of federal power that pro-choice liberals support generally.

In my opinion, under the Supreme Court's recent (post 1995) ICC cases, neither the PBABA nor a ban on abortions after 20 weeks is reasonably within the federal government's constitutional authority.

The main obstacle is that one of the threshold indicia for an activity to be regulated by Congress under the ICC is that the activity is in some way "economic" in nature. For example, the sale of drugs, the minimum wage, labor-management relations, white collar crime, and the payment of health care costs all involve economic activity.

Consider the partial-birth abortion technique: Regulating the specific method a doctor uses in performing a medical procedure is not regulating a fundamentally "economic" activity. Banning partial-birth abortion, like banning all abortions after 20 weeks, is non-economic in the same way that the following are not economic in nature: criminalizing the possession of a gun on school property (held unconstitutional in United States v. Lopez); and allowing an individual to file a civil suit against other individual in federal court for sexual assault (a provision of the Violence Against Women Act held outside Congress' authority in United States v. Morrison).

At the same time, banning a particular medical technique is not akin to criminalizing behavior in order to facilitate the exercise of other federal powers-- which Congress may do-- for example, criminalizing the murder of federal workers or preventing destruction of federal property; or criminalizing the local growing and selling of medical marijuana in order to assist in preventing interstate and international drug trafficking, which the Court upheld as within Congress' authority in Gonzalez v. Raich.

I don't see the ICC logic of the current Court allowing for the banning of abortion after the 20 week mark. Conservative politicians and lawyers might make a case for it, but it will be interesting to see how comfortably it fits with their analysis of other ICC issues. Of course, as long as pro-choice liberals refuse to bludgeon conservative lawyers and judges with their own weapon, the dubious constitutionality of federal abortion laws will remain largely a non-issue.

Links:

Article in Politico (July 24, 2013): Marco Rubio wants to be lead sponsor on anti-abortion bill

Article in The Weekly Standard (July 2, 2013): Rubio to Introduce Senate Bill to Ban Abortions After 20 Weeks

Legal Information Institute (LII) version of Gonzales v. Carhart, 550 U.S. 124 (2007)

Text of the Partial-Birth Abortion Ban Act of 2003