As David Bernstein points out, Justice Thomas (in a concurrence joined by Justice Scalia) raised the possibility that the federal ban may be outside the scope of congressional powers under the interstate commerce clause. In "Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban," 30 Connecticut Law Review 59 (1997), Glenn Reynolds and I argued that a federal ban on a particular abortion procedure is beyond the scope of congressional powers to regulate interstate commerce -- at least if the interstate commerce power is construed to mean anything less than a grant of powers to Congress to legislate on all possible subjects.

As Justice Thomas noted in his concurrence, the plaintiffs never raised the commerce clause issue. It is easy to understand why. If we are going to start actually obeying the commerce clause in regard to abortion restrictions, then, logically, the federal law against abortion clinic picketing (Freedom of Access to Clinic Entrances Act, "FACE") is also probably unconstitutional.

Reynolds and I suggest that, as a general matter, one way in which a nation can avoid being torn apart by contentious social issues, including abortion, is not to impose uniform national rules, but rather to let different jurisdictions establish different rules. Our approach is consistent with the text of the Constitution, which plainly grants Congress power to create national uniformity over certain specified subjects, but not over everything.