I throw this question out to any constitutional law experts out there, particularly those with specialized knowledge of the Commerce Clause.
As we all know, the U.S. Congress passed a new federal law banning the procedure known as "partial birth" abortion. The law was immediately challenged and has already been stayed by a few federal district judges.
The new law appears to be most vulnerable to constitutional attack because it does not include a health exception. This was one of two grounds on which Justice O'Connor (who provided the fifth vote) voted to strike down a seemingly similar Nebraska statute in the 2000 case of Stenberg v. Carhart. She wrote:
...a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.
The second issue cited by O'Connor was whether the Nebraska statute did not delineate the procedure to be barred specifically enough, leading to the possibility that the legality of other abortion procedures would be threatened. The new federal statute apparently includes diagrams of the procedures to be barred, so may not be vulnerable on that ground to the same extent the Nebraska statute was (I'll leave that to the medical experts).
I would like to open up a (potential) new frontier in this discussion. Namely, I am curious whether the new federal "partial birth" abortion statute can be challenged on federal/state grounds (i.e., whether it violates the Commerce Clause).
The relatively recent "landmark" case of U.S. v. Lopez overturned the federal Guns-Free Schools Act, on the grounds that laws regarding possession of firearms are not sufficiently linked to interstate commerce to warrant federal legislation.
The question I leave for those of you who know Commerce Clause jurisprudence far better than I do is whether abortion is sufficiently "interstate" to justify federal legislation. Provision of abortion certainly can take on an interstate component, as when somebody travels from one state to another to receive an abortion.
But I do not see abortion as an inherently interstate matter, the way the airline industry is, for example.
Given that individual states have traditionally been free to impose (or not impose) whatever abortion restrictions they choose (within the parameters of Roe v. Wade), one might argue that the new federal law usurps state power.
Might the pro-states rights (except for Bush v. Gore) conservative justices buy into the argument outlined above?