Con Law Geeks, Take Note!

On NPR yesterday I heard about the greatest case ever -- it's like a hypo on a final exam, except it's real.

Missouri has a law that restricts a minor's ability to get an abortion without prior parental notification. But Illinois does not have such a law. Clinics and family planning services in Illinois have been advertising in St. Louis, which is right across the river, and their advertisements include (truthful) statements that there is no parental notification law in Illinois, so if a pregnant minor wants an abortion, she can get one in Illinois. Now, Missouri has made it a civil tort to assist a minor circumventing the Missouri parental consent law, and a court has indicated that it could hold an Illinois clinic civilly liable to a Missouri parent on the basis of the advertisement alone. Further, there are bills pending in Congress (and likely to be re-introduced in the next Congress) which would enact Federal criminal penalties for those who help minors cross state lines to get an abortion.

How many rich Constitutional issues can one case have? Abortion, federalism, inverse commerce clause, right to travel, privileges and immunities, freedom of speech, due process... It's a delicious case.

As to the merits, I'll give my first impressions because I need to get ready for work soon. I think Missouri loses, and if the Federal government steps in, it loses too.

On the First Amendment issue, it seems to me that the advertisement is commercial speech, which means it can be regulated more stringently than political speech but it cannot be prohibited entirely. That means that if the advertisement is truthful and not deceptive, it will pass a Constitutionally-acceptable content-sensitive regulation.

On the abortion issue, Missouri can have a parental notification law if it likes. It can also have a non-circumvention law to enable and enforce its parental notification law. But an attempt to longarm the non-circumvention law to the Illinois clinics is overreaching. The advertisement does not "assisting" the minor circumventing the Missouri law; it does not offer, for instance, transportation to the clinic.

On the federalism issue, the Federal government, should it intervene, does not have any interests in enforcing a Missouri health and safety law. Its interest is in regulating interstate commerce. Yes, this is interstate commercial activity as defined by the cases interpreting the Commerce Clause. But the Federal government's interest in health and safety is limited to Federal enclaves where Congress exercises police power. In this case, the Federal government is piggybacking its commerce regulation interest on a state's claimed health and safety interest; the Federal government needs an independent basis for its commerce regulation that affects an area of Federal concern. By definition, an area of Federal concern is not enforcing a state's law, particularly where a neighboring state has a contrary law.

On the inverse commerce clause issue, the facts of the case weigh against Missouri. Lots of businesses in East St. Louis advertise in the city of St. Louis, across the river. Lots of people travel back and forth between the two states to take advantage of differing laws. There are lots of cases where businesses in one state advertise business opportunities they offer which are illegal in the states where they advertise -- casinos in Atlantic City and Las Vegas trying to persuade Californians, New Yorkers, and Pennsylvanians to cross the state line and come gamble in Nevada or New Jersey come to mind.

As for due process, this requires that the civil liability be proportionate to the actual harm suffered. Given that Missouri's parental notification law does not prevent the minor in Missouri from getting an abortion once notification is made -- the abortion can still go forward even if the parent objects, and there is a judicial circumvention exception for cases where the minor fears for her own safety -- the damage the parent suffers is not their daughter's termination of her pregnancy. It is their loss of notification and the opportunity to attempt to persuade their daughter to not get the abortion. What is the measure of damages here?

That's enough to strike the Missouri law down.