Thursday, April 26, 2007

Congress and the PBAA

Before going any further, it's important to understand what this act does and does not do. This act does not prohibit abortions based on the term or stage of the pregnancy during which they are performed (the Supreme Court decision seems to allow for that to happen, but we'll get there). What it does is to forbid a particular method of performing an abortion, known as an "intact dilation and evacuation" (intact D&E) procedure.

Congress elected to ban this particular procedure because it declared it "gruesome" and inhumane" and declared that it is "never medically necessary." But let us pause. Are we okay with Congress regulating the medical field based upon such circumstances? As a preliminary matter, let us dispense with the "inhumane" argument. If the abortion of a fetus is inhumane in one instance, it is inhumane in all instances. That is a larger question about abortion, not one specific to this procedure. Next, it is important to note that other D&E methods, not banned by the act, are no less gruesome. But is gruesomeness a sufficient ground for banning a medical procedure? Indeed, I think most of us would find any surgery quite "gruesome" - the slicing open of human skin, etc. The point is, in medicine there is a balancing test. Yes, the actions are gruesome, but we undertake them anyway because there are more compelling interests at stake.

And this brings us to the question of whether this procedure is ever "medically necessary." Note that Congress did not declare that the procedure was "never medically beneficial" or even that it was "never the best medical option." No, instead Congress declared that it was never medically necessary, which renders meaningless its exemption for the life of a woman. (Surely "necessary," if it is to have any meaning at all, must mean "necessary" to the life of the mother.) If a declaration of no medical necessity is all that is required, Congress would thus be empowered to regulate nearly anything in the medical field which it disfavors - end-of-life decisions, sex reassignment, and almost all types of abortion come readily to mind. This should give us all pause.

As a final point, Congress's greatest failure in passing this bill was to omit an exemption for the health of a woman. Other methods of abortion can pose risks of serious complications in some women. This may not be frequent; indeed there appear to be less than 5,000 of the banned procedures per year. If continued pregnancy poses a serious threat to the mother's health, should she not be able to have an abortion? Should the specific procedure used not be the safest possible one as determined by a certified physician?

Without going into it in great depth here, there is also a fascinating question, already widely debated in conservative circles, as to whether Congress, as opposed to state legislatures, may pass this type of legislation. Our federal government is one of enumerated powers (if broadly construed enumerated powers). But to construe its Commerce Clause powers this broadly may be to abandon any notion of "enumerated powers."

I will address the Supreme Court decision in a later post.


Alex said...

It's good to see you guys posting more frequently again... I just started going again on teaching myself.

The lack of the exemption was/is the worst part of the law. However, Sean Kellogg makes a good point (in a side note) that, as far as constitutional theory goes, the most alarming part of this might be that Congress is recognized as having the authority to pass laws on abortion at all. (Under what rationale is this?)

I tend to agree with Sean, and I also believe states should have the right to enact similar laws, but not the federal government.

Karl Smith said...

Congress passed this law while invoking its Commerce Clause powers. You'll see that this law applies to doctors "in commerce." Thomas (joined by Scalia), in concurrence specifically brought up that the issue of Congress's power to enact the legislation was not before the court in this case - a decent indication that they find it suspect. There will soon be litigation challenging the Act on these grounds.

Sean Kellogg said...

Interesting, I hadn't actually read the opinions (there are other opinions on patents I need to read first) but that Thomas and Scalia bring up the authority issue at all is very interesting.

See, there is a double edge sword nature to my argument (thanks to Alex for pointing it out), which is that if Congress lacks the authority to do this, what other acts that we might like do they lack power to enforce.

This is the problem of joining structural federalism with popular governance. The people want X done, government A is prohibited from doing X and government B isn't very effective at X. So government A just goes ahead and does it anyway. Since the people wanted X in the first place, they don't mind, and now some judge has a choice between striking down a popular initiative or simply ignoring federalism. I think the New Deal was the final straw on that particular camels back.