The next slew of Supreme Court decisions will include one on partial-birth abortion, the process by which doctors induce a late-term birth and, by all accounts, vacuum the brains out. Regardless of your views on abortion, the whole issue reeks of the federal government getting involved where it shouldn’t.

There are a number of important points to make. For one, partial-birth abortion may be grotesque, but it’s really no different morally than other late-term abortions. Another procedure, performed at the same stage of pregnancy yet not targeted by the ban, involves dismembering the fetus first, extracting it from the mother second.

Two, there is an important though increasingly ignored distinction between state and federal legislation. By and large, at least in theory, states can do whatever they want, as long as the Constitution doesn’t specifically forbid them (for example, the civil rights amendments and the legislation implementing them). The federal government, in contrast, can’t do anything unless the Constitution directs it to. The partial birth abortion ban under consideration is federal legislation, and according to my Cato Institute pocket Constitution, Congress has no mandate to pass laws about that. Though I suppose you could call it “substantially affecting interstate commerce.”

Partial birth abortion, like murder, rape and robbery, is the type of issue that should be handled by states. Since news articles don’t even mention this — the legal controversy is apparently over the fact that the law makes no exception for the mother’s health (if I wrote the law it would have one, but I’m not quite sure where that is in the Constitution either) — I unfortunately don’t think this will play into the arguments.

Finally, I know plenty of abortion rights supporters, and not one of them can honestly tell me Roe v. Wade is good law. It makes a ton of minor distinctions — directing exactly how much restriction is okay at what stage of pregnancy, setting state policies countrywide — that only a legislature is fit to make, chalking the whole thing up to the Fourth Amendment and some exaggerated common law notion of privacy.

Chipping away at the effects of Roe like this, without touching the “logic” of the original decision, is probably progress to some, but in the end it only further clutters the legal landscape with federal overreach. The courts shouldn’t have gotten involved with early-term abortion, and Congress should have kept out of partial-birth abortion.

Robert VerBruggen blogs at http://robertsrationale.blogspot.com.