American politics in the 1990s is preoccupied with the movement of power from a centralized federal authority to state and local governments. There is some measure of consensus that the federal government can no longer provide solutions to all of America's problems., The resulting retreat from the twentieth century federal monolith has interesting implications for constitutional law. The federal government's power expanded largely under the authority of the Commerce Clause. Although the traditional broad interpretation of Congress's commerce power bears little resemblance to the actual text of the Constitution, courts have accepted the notion that Congress may regulate any activity that it reasonably believes could affect interstate commerce. In 1995, however, the Supreme Court, in the landmark decision of United States v. Lopez,a held the Gun-Free School Zones Act unconstitutional as beyond the scope of the commerce power.
This Note evaluates the significance of that decision to the Freedom of Access to Clinic Entrances Act ("FACE Act"). Developed in response to the violent and obstructionist tactics of some anti-abortion activists, the FACE Act prohibits the intimidation of patients seeking access to reproductive health care. This Note analyzes the FACE Act's constitutionality under the Commerce Clause, concluding that while Lopez does not unequivocally call for overturning the act, it provides strong authority for such an argument. This Note contends that a challenge to the FACE Act should be sustained by the Supreme Court because the statute exceeds meaningful limits on the Commerce Clause and because state law is better able to address the problem of violent anti-abortion activity. Part II examines the legal background of the Lopez decision, providing a basis to discuss the impact of the decision. Part III focuses on the FACE Act, including its legislative history and a recent interpretation given by the Seventh Circuit. Part IV analyzes two views of how Lopez affects the FACE Act. Finally, Part V examines another possible constitutional source of congressional power and offers two regulatory alternatives to the FACE Act that better conform to a post-Lopez Commerce Clause.
Benjamin W. Roberson,
Abortion as Commerce: The Impact of "United States v. Lopez" on the Freedom of Access to Clinic Entrances Act of 1994,
50 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss1/6