Roy Moore files brief in partial birth abortion case

The AP report is here.

According to the web site of Moore's Foundation for Moral Law:

Former Chief Justice Roy Moore and the Foundation for Moral Law filed an amicus curiae ["friend-of-the-court"] brief today asking the United States Supreme Court to rule in Gonzales v. Carhart that the Partial-Birth Abortion Ban Act of 2003 is constitutional because there is no “right to abortion” in the United States Constitution.

In his brief, Moore argues that:

1) the Supreme Court should decide cases and controversies based on the text of the Constitution, not "judicially fabricated tests";

2) Congress has the authority to enact a ban on partial-birth abortion under the Fourteenth Amendment;

3) the U.S. Constitution does not protect a right to abortion.

I agree with Judge Moore on points 1) and 3), but I think he is wrong on point 2). While Congress may possess a limited power to regulate abortion under the interstate commerce clause, it is a real stretch to suggest that the Fourteenth Amendment expands that authority.

Abortion, like other crimes, should be primarily a concern for state governments to address; the federal government - the President, Congress, and the Supreme Court - should butt out.

As Robert Alt explained back in 2003:

...two recent examples demonstrate how federalism transcends ordinarily political alliances. First, prior to its recess, the Senate passed a ban on partial-birth abortion. The bill, which is awaiting likely approval by the House and signature by the president, makes it a federal crime for a doctor to perform this type of late-term abortion. The partial-birth-abortion ban enjoys widespread popular support, received a bipartisan vote in the Senate, and is particularly lauded by conservatives, who consider it a reasonable limitation on an unreasonable procedure. It is also unconstitutional. The constitutional infirmities do not necessarily arise out of the right to abortion found in Roe v. Wade, but out of constitutional requirements of
federalism.

To understand why the partial-birth-abortion ban is constitutionally vulnerable requires a brief explanation of the Commerce Clause. Many policymakers assume that the national government can regulate whatever they perceive to be a national problem. But the Constitution does not permit Congress to legislate on every issue which is popular or good. Rather, the Constitution, by granting specific powers, permits the national government to regulate in specific and limited fields. Thus, in the Commerce Clause, the Constitution gives to Congress the authority to regulate interstate commerce, but expressly withholds from the national government the authority to exercise traditional police powers. ...

Other conservatives, like Party of Death author Ramesh Ponnuru, agree with Judge Moore that the federal ban is constitutional. Even if they are right, the federal government has other, more pressing, things to worry about - namely those duties which are specifically delegated by the Constitution. If the feds want to earn their keep, they should attend to those first.