Thursday, April 28, 2005

State's rights, personal rights, abortion rights

The Times reports that the House Passes Bill Tightening Parental Rule for Abortions:
The House passed a bill on Wednesday making it a federal crime for any adult to transport an under-age girl across state lines to have an abortion without the consent of her parents. A vote on a similar bill is expected in the Senate later this spring or early this summer, and backers says its chances are good.

The measure, the Child Interstate Abortion Notification Act, passed 270 to 157 and was a victory for abortion opponents, who have been pushing an ambitious agenda now that Congress is under greater Republican control.

"This legislation will close a loophole that allows adults not only to help minors break state laws by obtaining an abortion without parental consent, but also contributes to ending the life of an innocent child," said the chief sponsor, Representative Ileana Ros-Lehtinen, Republican of Florida.

Congress has the power "to regulate commerce … among the several states." Some conservatives claim that the NLRB, ESA, EPA, Social Security, Medicare, Medicaid, and most of the government established since 1937, violate that clause. They argue that commerce is trade, exchange of cash for goods and services, across state lines. They don't think endangered species entirely within one state should be covered by ESA. Some argue that, since endangered species are not themselves businesses, so Congress shouldn't have been able to pass ESA. Furthermore, they claim that businesses which operate within one state shouldn't have to obey federal minimum wage or maximum hour laws.

Surely, anyone who thinks protecting endangered species isn't commerce can't argue that pregnancy is commerce.
How can those people turn around and say that a private citizen driving a friend across state lines is a federal offense? Where's the commerce? Where's the federal interest? One of the arguments that the federalists made in justifying the constitution was that the federal government ought to ensure the free flow across borders. In particular, the constitution ensures that "no tax or duty shall be laid on articles exported from any state." Now people aren't articles, and restrictions on your rights in one state aren't really taxes or duties, but surely people are entitled to more protection than products.

This is also a violation of state and personal rights. Each state regulates waiting periods, parental consent, and other medical decisionmaking in different ways. When I go to a different state, the speed limit changes. These are interstates. The feds could say that my speed limit is determined by state law in the state where my license or license plates were issued, but that would be stupid. The states would object to the intrusion on their right to set standards for safe driving and their ability to determine community standards.

Here's a scenario where this law will make life miserable. A woman is traveling. Or she's in college. Or visiting grandparents for a while. She's pregnant. A complication emerges. She's rushed to the hospital, where it's determined that it's medically necessary to perform an abortion. But she's an out of state minor. Must she wait 24 hours, and fly her parents in, before a necessary procedure?

And how do you distinguish that case from someone traveling across state lines after being diagnosed with the problem? What about someone who has an urgent problem, but not emergency? What if it just has to happen at some point, but not urgently? What if someone has legitimate business in a state with more liberal laws, and while there, has an abortion? Were they transported across state lines for the purpose of the abortion, or is the transportation independent of the abortion? And who gets to decide?

Set aside the affirmative defense of abortion rights, that parental notification laws protect incest, that waiting periods punish poor women, and so forth. How do you enforce this law? Will there be inspectors at the borders to check everyone's papers? How far is this from the Fugitive Slave Act, compelling people with few rights in one state to return there no matter what?