Friday, April 29, 2005

The Volokh Conspiracy - House Passes Abortion Bill:

Orin Kerr wants to know whether the House bill prohibiting transport of a minor across state lines to avoid parental consent and notification laws is constitutional. He may delete my comment, which follows, as not germane since it does not reflect current Supreme Court jurisprudence.
I am not a lawyer, but I have been reading Restoring the Lost Constitution, so maybe I qualify. Here is my attempt to divine original meaning. This bill does not pass Commerce Clause muster, since abortions are not a trading (original meaning of commercial) activity, they are a medical service, and the Commerce Clause only allows Congress to regulate (original meaning is make regular) activity, not prohibit it. But this bill is justified under the Ninth and Fourteenth Amendments, and since it is designed to protect our rights, it is both necessary and proper. The right to raise one's child as one sees fit is clearly covered under the Ninth Amendment, and the Ninth Amendment, as written, applies to both Federal and State governments. The Fourteenth Amendment authorizes Congress to write laws protecting the rights protected by the Ninth Amendment. I would say the Constitution authorizes States have a parental notification and consent law as well, to protect their Ninth Amendment rights.

I will specify that this is not Supreme Court jurisprudence, it is Randy Barnett inspired analysis. The undue burden and health and privacy issues could doom this law, even under such inspired analysis, since the rights to health and privacy must be balanced against parental rights as well as the residual right of the baby. If I understand the commentary I've read, the Court does recognize the rights of the baby, but does not consider them significant enough to protect.
I hope he does not delete it. My dream is that Randy will comment, and perhaps even agree. Ah, the eternal quest for ego gratification.