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
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
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
illustrates Justice Thomas' ideas about the limits of Congressional power under the Commerce Clause.
, 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
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
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.