Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday's partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court. At the oral argument, liberal justices Ruth Bader Ginsburg and John Paul Stevens also suggested that they believe that at least some applications of the statute exceed Congress' enumerated powers under the Commerce Clause. I discuss their concerns in more detail here and here.
Assuming for the sake of argument that these four justices would all support a Commerce Clause challenge to the statute, could they pick up a fifth vote? It is difficult to know for sure, but the answer may well be yes. As I explained at the time of his nomination, Justice Alito had a strong record of support for limits on federal power as a court of appeals judge, and he might well continue in that vein on the Supreme Court. It is also possible, though far less likely, that Justice Souter or Justice Breyer (who wrote the Supreme Court's earlier partial birth abortion decision, Stenberg v. Carhart), would place their commitment to abortion rights ahead of their commitment to virtually unlimited federal power.
All of this is of course highly conjectural. Predicting justices' votes on the basis of remarks in oral arguments is a chancy business. Ditto with predictions based on opaque concurring opinions. Only in the case of Justice Thomas am I close to certain about what his vote will be. The other four are considerably more difficult to predict. Moreover, whether or not a Commerce Clause challenge to the partial birth abortion ban succeeds will depend in part on the specific facts of the case. A case addressing a partial birth abortion in a nonprofit clinic involving a woman who did not cross state lines, would be more likely to succeed than one with a commercial clinic or an interstate transaction.
Nonetheless, there is at least some significant chance that a cross-ideological coalition of justices would be willing to support a federalism-based challenge to the congressional partial birth abortion ban. If it does come to pass, it will be hugely important as the first Commerce Clause case in decades where federal power was constrained by a coalition of liberal and conservative justices rather than by a narrow 5-4 majority consisting of the five most conservative members of the Court. In my view (see here for details), judicial enforcement of limits on federal power cannot survive in the long run if it remains a parochial concern of conservatives and libertarians. Just as with judicial enforcement of free speech, freedom of religion, and other constitutional constraints on government power, it requires a broader cross-ideological consensus in order to succeed.
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, then, is what its scope would be found to be. Would only free clinics be excluded, or even them? Would only cases where someone crossed a state line be included?
Why not? The Commerce clause is used for so much else that seems to have little bearing on interstate commerce. Given the way it has been interpreted as extending federal authority for everything from crop quotas to marijuana grown for private use, is there anything not covered by the commerce clause? Is there any justice who has a consistent philosophy regarding the commerce clause? The justices seem to flip-flop on its extent with their opinions driven more by their feelings about the particular issues affected.
C'mon:
would place their commitment to abortion rights ahead of their commitment to virtually unlimited federal power.
I believe they would phrase their commerce clause jurisprudence as a commitment to precedent. Theirs is no more a commitment to "unlimited federal power" just because they voted in accordence with precedent than is justice scalia's vote in 8th amendment cases a "commitment to death" because he votes in accordence with his vision of precedent.
As I see it, Row vs Wade might also, at the same time be struck down as a Commerce Clause overreach.
Thus this may well be a useful end run to not judging the validity of Roe, which some of the court would prefer not to do, but just to declare it null and void as a precedural manner.
The fact that Scalia joined the Thomas concurrence in Gonzales v Carhart is not dispositive, as that concurrence merely stated that the Commerce Clause was not on the table in this case. The concurrence coyly omitted any actual opinion on the question, possibly to secure Scalia's vote.
Now that the statute has been upheld on its substance, states can adopt similar PBA laws based on the Carhart precedent. Tossing out the statute on Commerce Clause grounds now would just throw the conservatives a bone in building stronger federalism jurisprudence without affecting states' abilities to enact PBA statutes. The only benefit from the liberal side to a Commerce Clause ruling now would be to preserve a right to PBA in those states that would not be inclined to ban it.
And, as Adler said, the statute has its own limiting clause that would make a Commerce Clause challenge problematic. For example, I assume that, at a minimum, there would be no Commerce Clause issue with respect to PBAs performed on federal land, and the traveling across state angle probably survives a Commerce Clause challenge under current jurisprudence.
What mattered deeply to both sides in the legal struggle was the precedential value of the Gonzales v Carhart decision as a building-block in an ongoing campaign, and the decision is already a big win for the pro-life faction on several legal questions. Having the PBA tossed out on federalism grounds now would subtract nothing from that precedential victory.
The other major impact of this controversy on both sides is political, not legal.
So before counting hypothetical votes on the court in a hypothetical case, look for a real-life plaintiff with the standing and the will to bring it.
Well, as a practical matter a successful Commerce Clause challenge would take Congress out of the business, for the most part, of regulating abortion. I think that would be a significant victory for the pro-choice advocates. Obviously the pro-choice advocates would prefer as their first choice decisions that say neither the states nor the federal governemnt can regulate abortion in certain ways based on Roe and its progeny, but as a second best opion, eliminatng federal regulation of abortion certainly helps their cause.
Personally, I would hate to see a successful Commerce Clause challenge because that opens the door to more Morrison's and Lopez's and less Raich's.
It doesn't seem like such a great deal for conservative jurisprudence if you basically have two votes against most exercises of Commerce Clause power and three votes that swing in whenever the power is exercised in pursuit of some conservative objective.
And, even if you are right that a court could posit a plausible distinction in favor of marijuana regulation and against abortion regulation, there are still plenty of laws on the books that are based on the Commerce Clause with less interstate commerce impact than this one.
As soon as Scalia saw that such a position would result in the invalidation of a law he supports for policy reasons, he would find some flimsy excuse to abandon ship.
He's proven he could do it in Raich v. Gonzales, there's no reason to doubt he would do it in this situation too.
I don't think this is right. Pro-choice advocates have consistently tried to strike down state regulations of abortion. If they see an opportunity for Congress to occupy the field, I'm sure they'll prefer that to regulation in South Dakota or Utah. In the long run, I see this decision as disastrous for those who oppose abortion -- the nation as a whole supports the right much more than individual states do.
I wasn't taking sides in the case, but just looking for an explanation for why one side of the case did not make an argument that might have convinced some of the justices.
Obvious as distinct from, say, inaccurate.
a·bor·tion·ist /əˈbɔrʃənɪst/ Pronunciation Key - Show Spelled Pronunciation[uh-bawr-shuh-nist] Pronunciation Key - Show IPA Pronunciation
–noun 1. a person who performs or induces abortions, esp. illegally.
2. a person who favors or advocates abortion as a right or choice that all women should have: usually intended as an offensive term.
id walk downstairs and check the oxford english, but i've read your website and i'm sure i'm talking to a wall.
As for the Dictionary.com definition, I was using the word in the sense of definition 1. I was referring to those parties to the case who actually perform abortions, and not those who merely advocate abortion rights.