In today's Gonzalez v. Planned Parenthood case, Justice Thomas wrote a very brief concurring opinion, reprinted in full below:
I join the Courts opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Courts abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S.914, 980983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).
Justice Scalia joined this opinion. Thomas, who has a very narrow view of the scope of the Commerce Clause seems to be hinting that he might be sympathetic to a Commerce Clause challenge to the law. That didn't stop Justice Scalia, who wrote an atrocious concurring opinion on the Commerce Clause issue in the medical marijuana case, from joining Thomas's concurrence. I may be reading too much into this, given that Thomas's note that the Commerce Clause issue was not raised is obviously true, and Scalia certainly wouldn't disagree with that particular premise. But I'm hoping that Scalia, too, wishes to hint that, he suspects that Congress dictating nationwide abortion laws exceeds the scope of the Commerce Clause.
Related Posts (on one page):
- Federalist Society Online Debate on the Partial Birth Abortion case:
- How Many Justices Would Support a Commerce Clause Challenge to the Federal Partial Birth Abortion Ban?
- The Federal PBA Ban and the Commerce Clause:
- Federalism and Partial Birth Abortion:
- Federal Partial Birth Abortion Ban: A Violation of the Interstate Commerce Clause?
- Scalia Having Second Thoughts About the Commerce Clause?:
The question is, with this federal statute now upheld, will people finally stop making the erroneous claim that reversing Roe would send the abortion issue back to the states? It's just not true.
And by the way, it's worth considering why none of the lower-court challenges to the statute raised a Commerce Clause argument. These litigants would have gladly adopted any argument which might result in overturning the statute. The reason they didn't try this argument, obviously, is because they knew it had absolutely no shot.
Is not the same true in this case with regard to the broader abortion issue he raises, "that the Courts abortion jurisprudence, including Casey and Roe v. Wade ... has no basis in the Constitution?" Yet Thomas did not hesitate to state his opinion there.
It is actually an obvious winner. The reason the parties did not raise the issue is because they are testing the waters. They want the statute overturned, but not on commerce clause grounds because the commerce clause is easily avoided by tying abortion law to federal funding.
If they would have argued the commerce clause, Thomas would have accepted the argument, as his concurrence makes clear.
A decision targeting abortion on both right of privacy and commerce clause grounds would have a plurality opinion by the four liberal justices, a concurring opinion on different grounds by Thomas, (and maybe joined by Scalia, Roberts, or Alito) and a dissent with Kennedy and everyone who did not join Thomas.
As far as the comment above about Thomas raising the issue where it was not argued, that is just silly. This case was about abortion. If they think Roe is wrong, then the plaintiffs lose unless they can show another reason for striking down the law. They declined to do so. The arguments for the administration were tailored to one justice in this case. It would be silly to expect the administration to formally raise an issue to solidify a vote that they knew would go their way based on past precedent or for a justice to say, "well I do not believe abortion is protected by the 14th Amendment, but I will assume it is for the purposes of this case."
Thomas does this a lot. If he dissents (or joins a dissent) in a case he feels particularly strongly about, he'll continue to harp on it in every related case that comes along (e.g., punitive damages...from Pacific Mut. Life Ins. Co. v. Haslip (Scalia's concurrence, which he's retroactively endorsed) to Cooper Indus. v. Leatherman Tool Group to Philip Morris v. Williams). By the same token, if he feels strongly about a case but doesn't want to rock the boat, he'll tack on a note to that effect hinting broadly that someone should really give him an excuse to, say, declare nonindividualized traffic stops unconstitutional (Indianapolis v. Edmonds).
Put another way...there was already conservative opposition to Roe and friends when Thomas came along (he joined both dissents in Casey). But he would be (disregarding R&A) the only conservative justice to disapprove of random traffic stops, or declare commercial speech entitled to near-full First Amendment protection, so he doesn't all-out dissent.
To be fair, this case breaks the mold a little bit, since the deeply religious T&Sc. probably aren't chomping at the bit to declare federal abortion bans unconstitutional (but cf. sec. III of O'Connor's dissent in Raich, which section neither Rehn. or T. joined, unnecessarily declaring her opposition as a hypothetical California state legislator to medicinal marijuana; compare T.'s dissent in Lawrence deeming Texas's ban on homosexual sodomy "'uncommonly silly'" but voting to affirm it anyway.).
I'm sure I learned this is law school and for the bar but have since forgotten.
Roberts and Alito might not have joined Thomas because Thomas also wrote to repeat his belief that there is no constitutional basis for Roe. He and Scalia have a long record of their opinions on the Court's abortion jurisprudence, which Roberts and Alito do not. I believe it would be improper for the two new justices to express their views on a question that they have not yet been asked to decide.
Is not the same true in this case with regard to the broader abortion issue he raises, "that the Courts abortion jurisprudence, including Casey and Roe v. Wade ... has no basis in the Constitution?" Yet Thomas did not hesitate to state his opinion there.
The "health" exception was central to this case, with the Court deciding that the ban did not violate it. Thomas was adding that, because he thinks the health exception is not constitutionally-based, he did not feel obligated to determine if the ban squared with decisions that established and confirmed the health exception.
I don't think it's a "hint" at all. Let's look at what Thomas wrote:
I also note that whether the Act constitutes a permissible exercise of Congress power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
That doesn't say anything about how Thomas and Scalia might be inclined to rule on a Commerce Clause challenge. The obvious response is "well, we know Thomas, and this means he believes he'd strike it down on Commerce Clause grounds." I respond that we also know Scalia, who, based on his opinion in the medical marijuana case, would uphold on Commerce Clause grounds.
I don't think this signals anything. You have to remember that Supreme Court opinions are (usually) written to clarify issues for the lower courts. I think the concurrence just functions as a warning to lower courts not to read anything about the Commerce Clause into the opinion of the Court.
I don't think any Commerce Clause challenge is an "obvious winner," but I agree it was a strong argument and am intrigued by your points about the plaintiffs' strategy and federal funding. Given that federal funding of abortion is already banned, wouldn't tying other federal programs to a partial-birth abortion ban be "unrelated to the federal interest in particular national projects or programs" SOUTH DAKOTA v. DOLE, 483 U.S. 203 (1987)?
Scalia, on the other hand, has proven himself to be a rank hypocrite. He spouts off about jusicial integrity and originalism, and then makes contradictory decisions that just so happen to comply with his obvious political principles. Therefore, it is no surprise that he would joint Justice Thomas' concurrence after his vote on Gonzales v. Raich.
So, Professor Bernstein, I wouldn't count on Justice Scalia to join Justice Thomas in his further assaults upon the prevailing judicial Commerce Clause wisdom if the facts don't fit with Scalia's worldview.
We all know Thomas's views on the Commerce Clause; but it's plausible that he simply wanted to make sure that this case wouldn't set an affirmative precedent in support of Commerce Clause power over abortion. That doesn't necessarily mean he would have struck down this particular statute, but he just doesn't want some future litigant to say "of course Congress has the power to regulate abortion, no one said boo about the Commerce Clause in that Gonzales v. Carhart case."
Didn't the SCOTUS rule in Dole that there was a sufficient link between highway funding and drunk driving fatalities resulting from a lower drinking age to allow the Fed to withhold the funding? Regardless of whether or not the argument is true, I doubt that the Court would be bold enough to find a similar link between highway funding and partial birth abortion.
Of course, if your post was simply sarcasm, you can disregard everything I've said.
And where in the main opinion do you think its likely that a lower court would misread it and find that it had something to do with the Commerce Clause? If Thomas is taking those kinds of precautions, why didn't he also mention that this case had nothing to do with the Federal Lands clause, too. There are a whole host of things that this case did not decide because they weren't briefed or argued. What was special about the commerce clause that he had to bring it up?
Yes, cutting off highway funds would likely be too remote, but conditioning Medicaid or other federal aid for medical care on enacting such restrictions probably wouldn't (I don't think that's any more tangential to this issue than highway funding is to drunk driving.)
Taken to an extreme hypothetical, you could have a statute which everyone agrees is unconstitutional, but is nonetheless held to be constitutional because there is no majority for unconstitutionality on a single issue. Would this be right? (I'm asking--I myself have no idea).
This reminds me of the jury question in the Arthur Andersen trial, where the jury asked whether the jury had to agree on a single guilty individual in order to find the company guilty.
Compare your hypo with Youngstown. All justices that voted Truman's expropriation of the steel mills was unconstitutional agrred that it was unconstitutional, but they disagreed badly among themselves as to the reason why it was unconstitutional (limits of IEP). The end result, though, is that it was unconstitutional. So in your hypo, the statute would be unconstitutional because of a plurality opinion finding it so.
Funny thing- the 'majority' opinion, by Black, is widely regarded as the one opinion in the case you don't want to cite to (that the Executive has no IEP under the Constitution).
I think it was sarcasm. Linking the drinking age to federal highway funds because "people sometimes drive drunk on a federally funded highway," makes about as much sense as linking abortion to federal highway funds because "people sometimes get knocked up in the back seat of a car."
Each state can unquestionably ban a thing, such as marijuana. And Congress can ban the transport of that thing from one state to another. However, because of the nature of things, simply banning the interstate transport may not be sufficient to prevent the illicit thing from being transported from the state where it's legal to the state where it's illegal. Thus, Congress may find it necessary and proper, in order to accomplish its constitutional purpose of banning the interstate transport of the thing, to ban the thing entirely.
A service, however, is different, and there is not the same justification for a national ban. Congress has no authority to ban people from traveling from one state to the other. If abortion into the third trimester were legal, say in California, any individual in any other state in the country would have a constitutional right of travel to go to California to obtain one. The service itself is not crossing state lines, only the individual seeking the service. Congress may be able to prohibit the crossing of state lines with that purpose (a la the Mann Act), but it doesn't follow that they can prohibit the service itself.
I'm not articulating this as well as I'd like, but I do see a significant difference of kind here.
The difference with Youngstown is that while there were different philosophies as to the application of separation of powers, in the end the majority everyone in the majority was convinced it violated that one doctrine. In the abortion case for example, you could have 2 separation questions presented:
1) Does the statute violate the due process clause of the 14th Amendment?
2) Does the statute exceed the power accorded to Congress by the interstate commerce clause?
In the abortion case, the answer would be 5-4 no for the first question, and 8-1 or 7-2 no for the second question. However, the holding would be that the statute does not violate either provision.
I think your reading oversimplifies Youngstwon.
Black- Exec has no IEP.
Jackson- Exec has lots of IEP (IEP / gre area / lowest ebb), but this goes too far
Douglas- Violation of 5th am.- Congressional Power
Frankfurter- Legislative history / Cogressional Preemption
While all areas deal with SOP nominally (Douglas arguably dealing with the 5th, Black arguably dealing with Art. 2 limitations), they are basing their arguments on completely different legal reasoning. There are similar cases that pop out-
Griswold (9th Am. majority opinion vs. SDP concurring opinion)
Lawrence (What the hell majority opinion vs. Equal Protection concurring opinion)
etc.
I believe that if the case was brought on both Casey &commerce grounds, you could get an agreement in judgment with a majority opinion agreed to only in part. AKA Part 1 with 4 justices agreeing it is unconstitutional due to Casey, Part 2 with 2 justices agreeing that it is unconstitutional due to commerce, 6 justices in total holding the law unconstitutional as a to judgment.
But I could be wrong. Off the top of my head, I remember many cases where there was a concurrence in judgment but not in reasoning (just lack the time and facilities to look them up right now).
I think your simplifying both Youngstown and Griswold. For the most part, the justices concurring did not disagree with the opinion of the court. They felt that further elucidation was needed. In both cases the opinion of the court was a lowest common denominator, and both opinions suffer for being so.
I don't think the decision not the raise the Commerce Clause was because of the Spending Clause. I think it's because they want to be able to pass a federal abortion rights statute if Roe v. Wade is overturned.
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Perhaps my thinking on this is too simplistic, and I haven't read any of the opinions in the decision yet. But if I were a liberal looking to permit all kinds of federal regulation, with only the commerce clause for authority, I would not want a precedent that relied on the commerce clause, as did Lopez, which weakened the fed's ability to regulate. Assuming the party seeking to overturn the partial birth abortion prohibition was a liberal, there was probably a lot of pressure on that party to avoid the commerce clause.
I am reminded of Alito's (?) appellate court opinion which, I think, relied on the commerce clause argument to attack federal regulation of private possession of machine guns. He might well be compelled, if he is at all consistent, to apply the same reasoning to federal abortion regulation.
But Scalia hewed to the tests in John Marshall's seminal definition:
This test might turn on whether there is a constitutional right to abortion. So long as that right remains established (by Casey and Roe), regulation would have to pass their muster. (Scalia agrees with Kennedy in today's case that it does.) But if, as Scalia is on record believing, that underlying right should be overturned, and there is a legitimate government interest in protecting unborn life, then even more sweeping federal regulation of abortion might be possible under this theory.
Interesting, that may be correct. If a federal abortion rights statute preserves the basic right, where some states ban abortion almost totally, there will be uniformity of aboriton access in the earlier trimesters (when the majority of abortions occur, think $$$) and lack of access to lack trimester abortions.
If the court finds that federal abortion laws (I am setting aside jurisdictional elements for now) violate the commerce clause and lot of red states will all but ban abortion.
Where this would backfire politically is it would give Republicans a huge pro-life turnout, kind of like Roe.
The end should read:
The reason why it is unconstitutional is important for providing guidance to lower courts for the purpose of establishng precedent, but doesn't change whether it is unconstitutional.
if a majority of Justices state that a particular statute is facially unconstitutional, that statute is unconstitutional even if the Justices vary widely about why the statute is constitutional. If 5 Justices each had a different reason why a statute was unconstitutional, then the statute would be nullified even though 8 justices would reject any particular challenge.
The holding is always an answer to the questions presented. These determine whether a Ct/App is affirmed, reversed, or affirmed in part/reversed in part. The questions presented therefore control what would the outcome be. If the questions presented look at separate grounds, then the outcome I offered is possible.
This is the opening paragraph of Teague v. Lane:
The holding of the case does not need to have anything to do with the question presented.
Look at the subsequent postings on this issue. If one could simply cobble together a majority to find the statute unconstitutional from 2 entirely separate issues, those postings are irrelevant and meaningless. Do you think this is the case?
The question of retroactivity was neither briefed nor argued in Teague. It was not a question presented.