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Constitutional Law I (Prof.

Wildenthal)

Exercise #15

Abortion Rights, Interstate Travel, and Federal Powers

If writing answers under timed conditions, allow about 30 minutes for each question.

Question No. 1:

The state of Winston has debated the issue of abortion for many years. For several years, the state had left
abortion largely unregulated, except to require that abortions be performed by a licensed physician in a
licensed clinic, of which there are about 20 scattered throughout the state. Recently, Winston passed a
new law requiring that any abortion be performed in a full-service hospital. There are only two such
hospitals in the state, both in Winston’s capital and largest city, which is up to 200 miles from many rural
areas and small towns in the state. There are a few small hospital-clinics with emergency rooms scattered
throughout the state, but they lack the full range of hospital services and do not always have a doctor on-
location at all times; serious cases are often helicoptered into the capital city.

The new law’s requirements will result in a tripling of the cost of obtaining an abortion, without even
considering travel time and expense. Furthermore, Winston requires that a woman seeking the “abortion
pill” (RU-486) must meet with a doctor in a full-service hospital both prior to and after administration of
the pill. Advocates of the new law argued that possible complications and side-effects, both of traditional
surgical abortions and the new pill, made it safer to perform and administer them in a full service
hospital. “It’s better for abortions to be safe and rare than easily obtained,” one legislator argued. Jane
Doe, who wants to use RU-486 to terminate her first-trimester pregnancy, lives in a rural area 150 miles
from Winston’s capital.

Is the new law constitutional as applied to her? Discuss and explain (disregarding any possible issues
concerning federal statutes or regulations regarding RU-486).

Question No. 2:

(This was an essay question on the Fall 2002 final exam.)

The State of Winston adopts a law imposing certain restrictions on a woman’s access to abortion during
the first two trimesters of pregnancy. Before obtaining an abortion, a woman is required to meet with a
doctor, nurse, or certified counselor to discuss certain facts about the development of the fetus or unborn
child, the possible physical and emotional consequences of abortion, and alternatives to abortion and
related services. The information, detailed in the state law, is basically a summary of generally accepted
scientific information drawn from widely used medical and psychiatric textbooks, and a summary of
available services regarding prenatal and postnatal care and adoption. After this meeting, the abortion
may not be performed for at least 24 hours, at which time (if she chooses to proceed) the woman must
sign an informed-consent form certifying that she understands the information discussed in the required
meeting and is knowingly consenting to the abortion. The Winston state law also provides that a woman
seeking an abortion in Winston who is a citizen of another state must wait twice as long (48 hours)
between the required meeting and the abortion.

Among the justifications cited in the Winston State Legislature for this law are that it is needed to fully
inform women about the pros and cons of (and alternatives to) abortion, to protect women’s health, and to
protect the life or potential life of the fetus or unborn child by encouraging women to choose alternatives
to abortion. One legislator stated: “Does this make abortion more difficult and less likely? Sure! And
what’s wrong with that?” With regard to the longer waiting period for out-of-staters, there is no evidence
why that was adopted, except that one legislator stated: “We don’t want to encourage people in other
states to come to Winston for abortions.”

The Winston state law is challenged as unconstitutional by a woman in her first trimester of pregnancy
who is a citizen of a neighboring state. As applied to this woman, is the Winston state law, or any aspect
of it, invalid under any constitutional principle studied in this course (other than the dormant Commerce
Clause)? Explain why or why not. (Do NOT discuss the dormant Commerce Clause. NOTE: If you think
you need more information to more fully analyze this question, indicate what kind of information and
how it would affect your analysis.)

Question No. 3:

The Supreme Court in 1971 upheld a federal criminal statute (still in force) that defines and punishes, as a
serious felony, the crime commonly referred to as "loan-sharking" (i.e., engaging in extortionate credit
transactions in which money is loaned at extremely high rates of interest and repayment is enforced by
violence or threats of violence). Acts of loan-sharking are covered by this statute even if the particular
violent acts or threats are purely intrastate in character. The statute makes no explicit reference to any
required nexus with interstate commerce.

Would, or should, this case be decided the same way today in light of the more recent Supreme Court
cases that we have studied, regarding limits on the federal commerce power? Discuss and explain.

Question No. 4:

In 2003, Congress passed and President Bush signed a federal law prohibiting certain late-term abortions
(described by supporters of the law as "partial-birth" abortions). This law prohibits all such abortions
unless the life of the mother would be endangered, if the abortion is performed by a physician (or other
person) "in or affecting interstate commerce." The statute does not define exactly what criteria would
establish the suggested nexus with interstate commerce.

In 2007, the Supreme Court upheld this law in Gonzales v. Carhart, against a challenge claiming that it
violated a woman's federal constitutional right to choose abortion. The law has NOT been formally
challenged on the basis that it exceeds Congress's powers under the Commerce Clause or any other source
of federal power. But should it be?

Assume for the sake of argument that a "partial-birth" abortion is performed in a typical abortion clinic,
by a physician who lives and works locally, on a woman who also lives nearby, all in the same state.
Assume that, apart from the fact that the clinic may use certain products or devices in connection with the
abortion that once traveled in interstate commerce, there is no other obvious connection with interstate
commerce (i.e., neither the woman having the abortion, nor the physician nor other clinic staff, crossed
any state lines or engaged in any interstate transaction in connection with the abortion). Assume that the
abortion is perfectly legal under relevant state law (perhaps because the doctor found the woman's health
to be in danger).

Does a federal prosecution under this law, under such circumstances, exceed Congress's powers, even
leaving aside whether it violates a woman's individual rights? In other words, even if it might be
constitutional for a state to enact and enforce such a law, is it constitutional for the federal government to
do so? Discuss and explain.