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Justice Ginsburg: Because your time is running out I did want to ask you about a feature of this legislation that hasn’t come up so far, and that is perhaps stimulated by Stenberg. But up until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it’s, it’s been open to the states to make those decisions.

GENERAL CLEMENT: Well, I mean I don’t think it should figure in this Court’s decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don’t bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. [This is the statement that the Act applies only to partial-birth abortions in or affecting interstate commerce, as I noted above. — Patterico] The practical reason I think is because this isn’t the only instance in which the Federal Government has gotten involved to address issues related to the abortion context. [And that is the reference to the Freedom of Access to Clinic Entrances Act, or “FACE Act,” that Whelan refers to. You’ll see further references to this act in the transcript, which refers to it as the “face act.” — Patterico]

JUSTICE GINSBERG: Well I know, when it is a question of funding –

GENERAL CLEMENT: Well but also access to clinics, in the the face act, which is also –

JUSTICE SCALIA: The best example where government has gotten involved in overriding what the states want to do is Casey. It seems rather odd for this Court to be concerned about stepping on the toes of the states.

GENERAL CLEMENT: Well — it’s certainly true that abortion has been dealt with at a Federal level one way or another since 1973. So I think that’s also part of the backdrop, but I also think, I mean, you know, the Federal Government gets involved in this issue, you know, depending on your perspective, for good or for harm. It’s there to protect access to the abortion clinics –

JUSTICE STEVENS: General Clement, that brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

GENERAL CLEMENT: Justice Stevens, I don’t think we have taken, the Federal Government hasn’t taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There’s not a jurisdictional element in the face statute. So there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don’t understand.

GENERAL CLEMENT: Well, I think by, I mean, you know, the Court’s precedents in other areas [he means Raich and Wickard — Patterico] has suggested it’s just not a matter of whether the ultimate service is provided in commerce but in order to get the services they have to take –

JUSTICE STEVENS: Activities that –

GENERAL CLEMENT: Yes. Exactly. I don’t, I mean, that hasn’t been briefed up in this case. If it had been we’d probably have a definitive position one way or another. But I don’t think the constitutionality in this facial challenge where that hasn’t been a feature of the challenge turns on the answer to that question one way or another.

Well, Sandy, it seems as though Justice Ginsburg has had a change of heart on Raich! All is not lost. :-}