Commerce Clause: Who Knew?

I never knew just how many ways the Commerce Clause had been sliced, diced, twisted and turned over the years to justify the promotion or restriction of pretty much anything. It was very much a lightbulb-moment for me reading some papers on the commerce clause and realized how it was used to restrict reproductive rights while I was working at a women's health organization not long ago.

Citizens as Commerce?

The Commerce Clause, a seemingly straight-forward enough clause regulating trade between states, has in a relatively short time frame been used to both give and take away individual rights and liberties. Lens writes that since the 1990's, the Supreme Court has handed down decisions trending towards using the clause to “invalidate federal legislation to address social problems.”1 Having once seen enshrined in the Commerce Clause the means to outlaw segregation and promote civil rights, the Court has increasingly moved in the direction of erring on the side of favoring laws and legislation of states over the greater national public welfare on issues like violence against women.2

The definition of commerce has been stretched and molded according to political motivations, both progressive and conservative. Used to restrict states' attempts to enact progressive federal laws on child labor and civil rights through much of this country's history, the tide was turned through the heavy-handed threat of FDR's court-packing plan after the Court ruled against some of his New Deal legislation.3 From that point forward, “the Commerce Clause was no longer construed as limiting that [federal] power. The utility of the Commerce Clause as a basis for Congressional action was restored and then expanded...broadening the distinction between manufacturing and commerce to include even non-commerce type activities.”4 Lens goes on to write that the Commerce Clause was used as justification to pass laws addressing perceived moral and social wrongs.

A recent Congressional effort to prevent young women from crossing state lines in order to seek abortion services illustrates the reach of the interpretation of the Commerce Clause today. Recently, the Child Interstate Abortion Notification Act, or CIANA, proposed to make it a crime for any adult, including immediate family, to transport a woman under the age of 18 across state lines for the purposes of obtaining an abortion. This law, which would have potentially imprisoned concerned grandmothers, aunts, and clergy members potentially helping young girls--who potentially faced physical harm if they informed their parents—used the Commerce Clause as the basis of its legal justification.5 In fact, the law was following a long line of precedent. In addition to its application in ending segregation, “with the passage of the Food, Drug, and Cosmetic Act (1938)....consumer protection, health, and safety also fell within the legitimate scope of the Commerce Clause.”6

What about a young woman seeking abortion services in a neighboring state qualifies as commerce? She is certainly not a business nor is she seeking to trade goods or make a sale for profit. She is a consumer of a medical service. Clearly the consumer is not the target of legislation such as CIANA. For anti-abortion members of Congress the reproductive health centers she seeks to access are an industry and, in their view, a negative one that consumers need protection from. As much as the Commerce Clause can be seen to protect state rights and individuals from the overreaching power of the federal branch, so too it can just as easily be used to restrict the rights of individuals. This legislation is a remarkable change of tack from just thirty years ago, when New York was one of the only states with legal abortion services. New York clinics would advertise their services to out-of-state women, and early morning shuttle flights to New York would be filled largely with affluent women from other states.

Rights for Whom?

In the case above, what rights would the young woman seeking services expect to have? She likely would not expect her state of residence to provide her with the medical services she seeks free of charge. She would not expect the state to provide her with transportation enabling her to access services out of state. She would, however, expect to be able to travel across state lines unimpeded. According to Stone, a right of this nature would be classified as a negative substantive right. Negative substantive rights, according to Stone, are the right to do something free of restraint. These rights “create relationships of non-interference” and in this aspect function as social regulatory systems.”7

Where would this young woman in question get the idea that she has the right to seek a medical procedure without her parents' consent, or even to cross a state line without their permission? She might state that as an individual she has the right to bodily autonomy, and as a U.S. citizen she has the right to travel the country unimpeded. In the U.S., Stone writes, the idea of “natural rights” has been an incredibly successful and influential philosophy, going so far as to be “exemplified in the Declaration of Independence.”8 With the passage of CIANA, the young woman would that her rights are dependent on the ideas of the political power of the moment9, and the protection of her rights dependent upon the character and ideology of the Supreme Court of the era.

1Ibid, 319.
2Ibid, 319. Lens writes that the Court invalidate the Violence Against Women Act's provision for a victim to sue her attacker in federal, not just criminal, court.
3Ibid, 322-323.
4Ibid, 323.
5http://boustany.house.gov/LatestNews.asp?ARTICLE3149=3186&PG3149=7, last access 10/26/2007.
6V. Lens, 324.
7D. Stone, Policy Paradox, New York: W.W. Nortan & Company, 1997. p327-327.
8Ibid, 334.
9Ibid, 350.