Clarence Thomas might make an excellent blogger. At less than 200 words, including citations, his opinion in Gonzales v. Carhart is all substance:
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring.
I join the Court’s 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 Court’s 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, 980.983 (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).
As Thomas suggests, this decision isn’t much of a breakthrough, merely a continuation of the Court’s practice of inserting itself into abortion debates. The Partial-Birth Abortion Act of 2003 was specifically designed after the Stenberg ruling to pass muster with the Court; today’s ruling merely holds that the effort was a success. The Court has provided a guideline for legislators — write laws like the federal ban, not like Nebraska’s ban (the main difference is that the language of the federal ban is more specific, and is very difficult to violate by mistake). What it hasn’t done is extract the judiciary from the role in shaping abortion law; the “undue burden” standard of Casey remains the measure by which judges are expected to evaluate such laws.
And the federal ban is, as Thomas hints, probably unconstitutional on commerce clause grounds. That wasn’t at issue in this case, but it may be at issue in a future case. The implication, of course, is that pro-lifers still have good reason to push for state-level bans.
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