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.