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Friday, April 20, 2007 

Thomas, the Commerce Clause, and Carhart II: Did He Really Mean It?

Now that we're a few days removed from the decision, I am even more convinced that Justice Thomas' concurring opinion in Carhart II is the most important, most cryptic, and most interesting opinion in the case. Justice Kennedy's majority was not much of a surprise. He made it clear in his Stenberg dissent that he felt that O'Connor and Souter stabbed him in the back and misapplied Casey's undue burden standard. Justice Ginsburg's dissent in Carhart II wasn't shocking either. It was interesting to see her move away from the privacy argument and push an equal stature argument. It's fun to watch the shifting rationales for the Constitutional right to an abortion. Any port in a storm, I guess.

As I said in this post, Justice Thomas' concurrence is the real gem of the case (Quick aside: I'd like to thank How Appealing's Howard Bashman for linking to that post and upping my traffic by about 500%). In that opinion, Justice Thomas, joined by Justice Scalia, called for the Court to overturn Roe/Casey and also hinted at a Commerce Clause problem with the Partial-Birth Abortion Ban Act. The Commerce Clause issue wasn't raised by the parties or the lower courts, so the Supreme Court didn't do anything with it. I want to discuss two questions: would Justice Thomas strike down the Partial-Birth Abortion Ban Act on Commerce Clause grounds, and why didn't Planned Parenthood or Dr. Carhart raise the issue?

I'm going to focus on Justice Thomas specifically. Personally, I doubt that Justice Scalia would have really struck down the Partial-Birth Abortion Ban Act as a violation of the Commerce Clause. While he had been a strong supporter of federalism in US v Lopez and US v Morrison, Scalia held back in Gonzales v Raich, the California medical marijuana case (I'll be discussing that case further in the post). Justice Thomas, as well as then-Chief Justice Rehnquist and Justice O'Connor, stuck to their federalism guns. Justice Scalia did not. I think that he joined the Thomas concurrence in Carhart II because of the anti-Roe/Casey statement, not the Commerce Clause statement.

To understand if Justice Thomas would strike down the Partial-Birth Abortion Ban Act on Commerce Clause grounds, it's helpful to look at his opinions on that issue. The two most enlightening ones are his concurrence in US v Lopez and his dissent in Gonzales v Raich. But first, let's look at the text of the Commerce Clause, just so it's fresh in our minds. Article I, Section 8, Clause 3 of the US Constitution grants to Congress the power...
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Congress has used that sentence to enact every kind of legislation under the sun, at least until the Rehnquist Court came along.

In US v Lopez, the Court looked at the constitutionality of the Gun-Free School Zones Act, which was authored by my home state senator and favorite Keebler elf, Herb Kohl. Basically, it was a federal law that banned firearms within 1,000 feet of a school. A 5-4 majority struck the law down as being beyond the powers of Congress under the Commerce Clause. The majority restricted Commerce Clause regulation to the channels of commerce, the instrumentalities of commerce, people or things in interstate commerce, and actions that substantially affect interstate commerce. In his concurrence, Justice Thomas went further. He didn't like the substantial effects test at all...
We have said that Congress may regulate not only "Commerce . . . among the several states," U. S. Const., Art. I, §8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life.
The police power is a broad power to pass laws to further the health, welfare, and safety of the public. States, not the federal government, hold the police power. Thomas also gave us some examples of things that are not commerce and cannot be regulated under the Commerce Clause...
But it seems to me that the power to regulate "commerce" can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States, notwithstanding these activities' effects on interstate commerce.
Emphasis added. It's an interesting list, especially the first item. Thomas also cites a few cases...
Chief Justice Marshall, writing for the Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that Congress had "no general right to punish murder committed within any of the States," id., at 426, and that it was "clear that congress cannot punish felonies generally," id., at 428. The Court's only qualification was that Congress could enact such laws for places where it enjoyed plenary powers--for instance, over the District of Columbia. Id., at 426. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce (or on any other subject of federal concern) was irrelevant to the question of congressional power.
United States v. Dewitt, 9 Wall. 41 (1870), marked the first time the Court struck down a federal law as exceeding the power conveyed by the Commerce Clause. In a two page opinion, the Court invalidated a nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked that the Commerce Clause "has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States." Id., at 44. The law in question was "plainly a regulation of police," which could have constitutional application only where Congress had exclusive authority, such as the territories. Id., at 44-45.
As you can see from his Lopez concurrence, Thomas has a very narrow ready of the Commerce Clause power.

In Gonzales v Raich, the Court decided that Congress can (by way of the Commerce Clause) preempt the states and ban the intrastate use of medical marijuana. The federal Controlled Substances Act and California's Compassionate Use Act were in conflict. Writing in dissent, Justice Thomas stated that local cultivation and consumption of marijuana is not "Commerce ... among the several States." Good originalist that he is, Thomas goes back to the Founding for his definition of commerce...
Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange-not all economic or gainful activity that has some attenuated connection to trade or exchange.
He went on to rail against the use of the substantial effects test...
The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design.
He takes the majority to task for their broad definition of commerce...
To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the " 'the production, distribution, and consumption of commodities.' "7 Ante, at 23 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8—9 (O'Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite."
Taken with Lopez, Raich illustrates Justice Thomas' ideas about the limits of Congressional power under the Commerce Clause.

Since Lopez, Congress has sought ways to draft around the Court's restrictions. Post-Lopez, Congress reenacted the Gun-Free School Zones Act with added findings professing the importance of establishing gun free school zones to protect public safety and interstate commerce. As far as I know, the law hasn't been challenged again. The drafters of the Partial-Birth Abortion Ban Act added a little something too. The law contains a jurisdictional element...
Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion...
Emphasis added. That, on paper, limits the applicability of the law to partial birth abortions within interstate commerce.

Now the $64,000 question: Would Justice Thomas strike the Partial-Birth Abortion Ban Act down on Commerce Clause grounds? I'd say yes. Based on my readings of his Lopez and Raich opinions, Thomas would have serious Commerce Clause problems with the Partial-Birth Abortion Ban Act. The mantra from the Roe/Casey opponents on the Court (Scalia and Thomas, previously Rehnquist and White also) is that abortion is an issue that should be left to the states. Overturn Roe/Casey, they've said, and the issue goes back to the state legislatures. The Partial-Birth Abortion Ban Act, if Constitutional under the Commerce Clause, would fly in the face of that. Abortion regulation would be a federal issue then. The states could be muscled out by Congress. Thomas' statements in Lopez and Raich show a hostility to this reading of Commerce Clause power.

I don't think that the jurisdictional element would be much of a hurdle either. When exactly does a partial birth abortion affect interstate or foreign commerce? Is it only when the woman or the doctor cross state lines in order to receive or perform the abortion? Is it when medical supplies used in the abortion are purchased in interstate commerce? Is that too attenuated? What about a doctor and patient who live in the same state and use only medical supplies produced and sold in that state? Is that abortion wholly intrastate and outside of the reach of the Act? I'm not exactly sure. I do think that Thomas is not kidding when he says that there are Commerce Clause issues with the Partial-Birth Abortion Ban Act.

My second question (I promise that this analysis will be shorter) is about the tactics used by Planned Parenthood and Dr. Carhart. Why didn't they make the Commerce Clause argument? If they peeled off Thomas (and maybe Scalia, though I doubt it), they would have had 5 votes to strike down the law. The decision to strike it down would be based on different grounds (Commerce Clause for Thomas, equal stature or whatever for the four dissenters), but it's still a win. In a comment at SCOTUSblog, Austin Evers asks the same tactical question...
At this point in my research, I believe strongly that the pro choice movement made a significant and decisive error in not raising a commerce clause challenge to this law. Instead of charging towards an almost certain 5-4 decision against them, they could have had a better shot at a 5-4 or better victory. Yes, the victory would have been without the benefit of a majority opinion, but they were heading towards that anyway.
At first glance, it makes no sense. Why not make the argument? Hoping that Kennedy would flip after his forceful dissent in Stenberg was a bad bet. Why not roll the Commerce Clause dice and try to pick up Thomas? I have a theory. I think that it goes back to the state-federal, post-Roe issue. Imagine that the Court overturns Roe/Casey. If you are in the pro-choice movement, what would you rather have: 50 fights in 50 state legislatures or one fight in Congress over the scope of abortion regulation? The pro-choice side is bound to lose, and lose big, in many state legislatures. They're not going to get abortion on demand from the Alabama legislature. There's no chance. The federal situation would be different. A Democratic-controlled Congress (which is especially more likely in the wake of Roe's demise) could regulate abortion under the Commerce Clause and take the issue away from the states. The pro-choice movement would be in a better position to protect abortion rights. Of course, that's just a theory of mine. I'm not exactly tight with the pro-choice legal movement and am not privy to their actual litigation tactics.

I do think that Carhart II could have gone the other way on a Commerce Clause argument. I guess we'll never really know, though. I'm going to take a nap now, because typing all of this has made me incredibly tired.

I have no doubt that Thomas is the strongest defender of the 10th Amendment, and has the most limited view of the Commerce Clause. But here I do not necessarily think he would have voted to strike down the ban on PBA.

First of all, even Thomas would agree that Congress has authority to regulate abortion as it relates to federal territories such as Washington D.C.

Secondly, regulating PBA is much different than than regulating gun posession Lopez and violence against women Morrison. PBA is a "procedure" bought and paid for by the woman accomplice to the murderer doctor. So an exchange of money is involved. So the distinction is there. In the aforementioned cases, SCOTUS was concerned about Congress trying to regulate noneconomic criminal activity. Thomas could remain true to his vote in those cases and still uphold this ban.

Please note that while he mentioned the Commerce Clause issue, he did not say how he would have voted had the issue been presented. He often likes to remind others on the court just how different he is from them.

As for your contention that Congress could regulate abortion after the demise of Roe, I am not so sure. If SCOTUS overrules Roe and says it is an issue to be decided by the states, I assure you that they will not be inclined to allow Congress to interfere with that decision. Properly enacted laws by the states under their police powers are not disturbed unless they violate a Constitutional right. Once SCOTUS says there is no right to an abortion, the states will be free to proscribe it completely.

Of course Congress could legalize it in federal territories such as Washington D.C.. That is unless SCOTUS rules that unborn persons have Constitutional protections under the 5th and 14th Amendments (that is my ultimate goal). But I will leave that discussion for another day.

Interesting points.

I agree that Thomas would have no problems with Congress regulating abortion in Washington DC. It is a federal territory and is fair game for Congress.

I recognize the differences between what is being regulated by Congress in Carhart II, Lopez, Morrison, and even Raich. The three previous cases were about noneconomic activity. Although, if you read Wickard v Filburn, Raich is about economic activity (but what isn't?).

My concerns are primarily with the intrastate/interstate issue. Are these procedures in "interstate commerce" and subject to Congressional regulation under Thomas' reading of the Commerce Clause? While the procedure is a commercial transaction, is it interstate or intrastate? If not intrastate in its current form, couldn't someone perform a partial birth abortion that includes a doctor and patient who live in the same state and use only medical supplies produced and sold in that state, etc. and make it wholly intrastate? That would sidestep the federal ban. Of course, that doesn't begin to touch on the issue of state bans.

Part of my confusion on the issue is thanks to the Court itself. Its Commerce Clause jurisprudence has been all over the map. Trying to figure out what the Justices will do in any given circumstance is risky, because they might surprise you (like in Raich). The additions of Roberts and Alito have increased the uncertainty. They've written federalist opinions in the past while on their respective Courts of Appeal. But now they get to set the standards from the Court. I'm eager to see what they'll do.

I agree that a majority that strikes down Roe and specifically says that abortion is a state issue will have the power and ability to enforce that. They will have the votes to restrict a pro-choice Congress from intervening. But a Court that opens the door to federal regulation of abortion (and may uphold future federal regulation) will look inconsistent if they say "Now it's just for the states." once Roe is struck down.

I'm not saying that it couldn't happen or it wouldn't happen. The Court has been inconsistent on many issues in the past. It just looks bad, and the Court will be criticized for it.

But a Court that opens the door to federal regulation of abortion (and may uphold future federal regulation) will look inconsistent if they say "Now it's just for the states." once Roe is struck down.

I now understand the point you are making. Let me try to explain it this way. Federal and state regulation of abortion are not necessarily mutually exclusive. It is possible that they both enact constitutionaly permissible laws regarding abortion, much in the same way they deal with regulating controlled substances.

Furthermore, there is a difference between Congress proscribing an abortion procedure, and Congress overriding state prohibitions on abortion. I can go into more detail on this point later if you would like me to. But for now I will just leave my conclusory statement alone.

It is possible that after the demise of Roe, 30 or more states will move to virtually ban all abortions. They will be free to do so under their police powers.

Congress will fight over a wide range of laws that are properly under federal jurisdiction. For example, a GOP Congress could move to proscribe abortion nationwide using section 5 of the 14th Amendment, that way there is no interstate commerce problem. That is really the way I would like to see Congress go when enacting legislation to protect unborn children. It would certainly be interesting to watch it play out.

A GOP Congress could also threaten to deny federal funds to states that allow abortion. That would sure be worth breaking out the popcorn for.

A pro abortion Congress could propose giving money to women so that they can travel to pro abortion states and have their babies murdered. They could also deny highway funds to states which proscribe abortion.

Politics will be more nasty than you can imagine it. The great thing is that the fight will at least be done in a way that gives the people a voice. Roe, no matter what anyone says, stripped away our right to self government in a deep and personal way. Murder laws are properly enacted and enforced by the states, as a result of people expressing their values through elected representatives. We should not be willing to turn over that most important right to 9 "super legislators".

The Constitution lays out basic fundamental rights which are not subject to popular rule. But they are limited, and they are specified directly. Everything in between should be fought out by the people through their elected representatives.

That is an argument which should be hammered home by conservatives over and over.

I agree that both the states and the feds can regulate abortion. While I see some Commerce Clause flaws with this particular ban, I don't doubt that the federal government can play a role in abortion regulation if it so chooses. The easiest way is probably the denial of funds method that you describe, a South Dakota v Dole method of getting state compliance with a desired federal goal.

My concerns are more along the lines of "it's not a matter of could, it's a matter of should." Abortion has been framed as a federalism issue by many anti-Roe people (although I do recognize that it's an Equal Protection, fetus-as-human-life issue for many other anti-Roe folks). While I agree that this issue should not be decided by the Court, I'm not sure that Congress is the proper legislative venue.

I'm a pretty strong believer in federalism. That's why I oppose on policy grounds the 21 year old drinking age requirement attached to the highway funds in South Dakota v Dole. Sure, it is a Constitutional use of the Taxing and Spending Clause, but it doesn't make it right for federal action in this area.

I think that the abortion issue should be treated in a similar way (although I recognize the stark differences between the level of interests involved in abortion and drinking age). I think that the abortion issue turns on whether or not fetal life is human life. If it is, the fetus can't be denied Equal Protection (or at least that's what Texas argued in Roe if I remember correctly).

But can we as human beings really know, from an epistemological stand point, if a fetus is human life? I have serious doubts about that. Doesn't that question then become one of philosophy and morality? That question can have a range of answers, especially over a diverse population like that of the United States. In a situation like that, isn't the state level the appropriate place to decide these issues? That would lead to a range of abortion regulations that would reflect the regional views of the majority of the regional population.

I completely understand that this view is unacceptable to a lot of people on both sides of the issue. If you believe that abortion is murder, you wouldn't want it happening anywhere in the country, even if it was only California and New York. If you believe that human life begins only after birth, then you would view the restrictive abortion laws in Alabama and Mississippi as tyranny of the highest order.

I don't know if there is an easy answer here or a real solution.

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