Instapundit writes the following and raises an interesting question.
IN THE WEEKLY STANDARD, JOHN MCCORMACK CALLS FOR a federal ban on late-term abortions. But while such a ban wouldn’t violate the Roe/Casey framework, it would nonetheless violate the Constitution because it is outside Congress’s enumerated powers. As Dave Kopel and I argued in Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Act, back in 1997, regulating abortion doesn’t fall within Congress’s commerce power — a conclusion that is strongly supported by the commerce-clause discussion in the Sebelius decision. It is conceivable that Congress could regulate post-viability abortions under it’s 14th Amendment Section 5 powers, but that seems quite iffy to me in light of recent Supreme Court caselaw.
One thing that Congress clearly could do, however — even more strongly supported by the Supreme Court’s ObamaCare decision — would be to put a tax on late-term abortion, and there’s no constitutional reason why that tax would have to be a small one.This is an interesting question. Obviously, taxing something heavily will lead to less of it, which is a good thing in this case. But is it moral for us to fund the public trust with blood money?
What are your thoughts?