Over at National Review’s The Corner, Ramesh Ponnuru and Jonathan Adler have been debating the Partial Birth Abortion Ban (this is a reprise of a similar, but better, debate they had a few months ago). Adler argues that Congress has no power to ban partial-birth abortions, because congress is constitutionally limited to regulating interstate commerce (you can read Adler’s argument in more detail here).

Adler is obviously correct, if you accept the correctness of the Supreme Court’s recent string of federalist decisions. It’ll be interesting to see how the conservatives on the Court deal with this issue; will their commitment to federalism outweigh their commitment to pro-life?

(Curiously enough, Adler doesn’t discuss what seems to me to be a potentially valid argument relating most PBAs to interstate commerce - as I understand it, nationally, only a handful of doctors perform third-trimester abortions. To have a third-trimester abortion, most patients have to travel over state lines to a state where one of those few doctors practices. But perhaps that’s not relevant - I’ve never totally grokked the conservative interpretation of the commerce clause).

Ponnuru, in contrast, argues that Congress can ban all abortions (not just partial-birth abortions) under the authority of the 14th amendment.

I don’t see how Ponnuru could be correct. Months ago, he argued that “the plain meaning of the relevant terms is that all persons are to be protected.” But the 14th Amendment begins with the words “All persons born or naturalized in the United States….”

I can’t imagine any reasonable argument that “the plain meaning” of the phrase “all persons born” is that it covers unborn fetuses. The 14th clearly doesn’t apply to people not yet born - at least, not if you pay attention to the words it uses. (Adler pointed this out, but if Ponnuru responded I didn’t see it).

Today, Ponnuru also argued that “In what serious sense does the replacement of a regime in which the federal government’s judicial branch says partial-birth abortion may not be banned by one in which the federal government says it is banned amount to a centralization of political power?”

But the Supreme Court never ruled that partial birth abortion “may not be banned” - they only said there were limits on how it could be banned. As Sandra Day O’Connor (who had the deciding vote on this question) wrote in her Carhart concurrence: “a ban on partial- birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.”

The problem is, most pro-lifers have no interest in a narrow, reasonable ban of D&X - such a ban has been proposed by Democrats and voted down by Republicans time and again. Pro-lifers have been well served by “partial birth” bans which get struck down (by the courts or by Clinton’s veto); keeping the issue alive let them pound Democrats with the issue, and assured their pro-life base that they were fighting the good fight.

Had Republicans simply passed a D&X ban into law - as they could have easily done at any point over the last decade, in the federal congress and in most states - then their pro-life base would have expected them to take serious steps towards banning abortion itself, instead of just concentrating on “partial-birth” abortions. And the last thing the Republican party wants is to make a direct assault on basic abortion rights – doing so could hurt them in elections.

Returning to my main point, the basic constitutional arguments against “partial-birth” abortion were known even before the Carhart decision - such laws need to be narrowly tailored, and they need to respect women’s 14th amendment rights by including a health exemption. Pro-lifers have freely chosen not to write such laws. But that’s a choice pro-lifers have made on their own, for partisan political reasons - contrary to Ponnuru’s claim, the Supreme Court didn’t make that decision for them.

So, from the point of view of conservative federalism, Congress’ new law - which absolutely forbids any state from allowing “partial-birth” abortions - is far more of an imposition on the states than the Carhart decision, which allowed D&X bans as long as they were narrowly tailored. Any conservative who is serious about federalism should therefore prefer Carhart to a federal partial-birth abortion ban.

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