May 7, 2013

IN THE WEEKLY STANDARD, JOHN MCCORMACK CALLS FOR a federal ban on late-term abortions. But while such a ban wouldn’t violate the Roe/Casey framework, it would nonetheless violate the Constitution because it is outside Congress’s enumerated powers. As Dave Kopel and I argued in Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Act, back in 1997, regulating abortion doesn’t fall within Congress’s commerce power — a conclusion that is strongly supported by the commerce-clause discussion in the Sebelius decision. It is conceivable that Congress could regulate post-viability abortions under its 14th Amendment Section 5 powers, but that seems quite iffy to me in light of recent Supreme Court caselaw.

One thing that Congress clearly could do, however — even more strongly supported by the Supreme Court’s ObamaCare decision — would be to put a tax on late-term abortion, and there’s no constitutional reason why that tax would have to be a small one.