Scalia Having Second Thoughts About the Commerce Clause?:

In today's Gonzalez v. Planned Parenthood case, Justice Thomas wrote a very brief concurring opinion, reprinted in full below:

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).

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.

Federal Partial Birth Abortion Ban: A Violation of the Interstate Commerce Clause?

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.

Federalism and Partial Birth Abortion:

In Gonzales v. Carhart, today's partial birth abortion decision, the mostly liberal advocates of virtually limitless congressional power under the Commerce Clause are to a certain extent reaping the fruit of what they sowed in cases such as Gonzales v. Raich. I discussed this point in more detail in a post discussing the oral argument in Carhart, back in November. In the argument, Justice Stevens and Justice Ginsburg expressed concern that a federal ban on partial birth abortion - particularly one that extends to free abortion clinics - may exceed Congress' Commerce Clause authority, which only gives it the power to regulate "commerce . . . among the several States:" That concern is, in my view, well-taken. However, it directly contradicts the Court's decision in Gonzales v. Raich, which endorsed virtually unlimited congressional power over anything that Congress has a "rational" basis to believe is even remotely connected to interstate commerce. Ironically, Stevens wrote the majority opinion in Raich, and Ginsburg signed on to it. For more details on why Raich, for all practical purposes, completely negates limits on congressional power, see my article on the case, and also the excellent analysis by VC co-conspirator Jonathan Adler. Obviously, liberal justices were not the only ones to endorse essentially unlimited federal power in Raich, and David Bernstein is right to call attention to Justice Scalia's possible doubts about the validity of his deeply flawed concurring opinion in that case. I critique that opinion at pp. 25-27 of my article.

I warned in the article and in my November post on Carhart that virtually limitless federal power can be used to uphold far-reaching conservative legislation, as well as liberal, and that it is far from clear that unlimited federal power is in the interests of liberals in an era when the federal government will often be controlled by conservative Republicans. And I explained how the federal partial birth abortion ban is an example supporting my point.

More importantly in a highly diverse society most such controversial social issues are better handled at the state, local, and private sector levels than through a one-size-fits all federal solution. Federalism debates often come down to a matter of whose ox is being gored in a particular case, which is perhaps understandable. However, there are also important systematic advantages of decentralization that are lost under a central government with nearly unlimited power. I will not go over those advantages in detail in this already lengthy post. But I have written about them extensively in the Raich article, and also here, here, here, and here, among other places.

Perhaps one consequence of Gonzales v. Carhart will be at least a modest increase in appreciation for federalism among both liberal and conservative jurists.

UPDATE: As I noted in my November post, the parties in this case did not raise the Commerce Clause/federalism issue, and the Court therefore was right not to address it. This post is not so much a criticism of the Court's reasoning, as an analysis of the case's broader implications.

The Federal PBA Ban and the Commerce Clause:

I certainly believe that federal statutes, such as the ban on "partial-birth" abortion violate federalism principles, transgress the limits of enumerated powers, and are contrary to the spirit (if not the letter) of the Supreme Court's federalism jurisprudence. (See for instance, this NRO article from 2002.) Given existing precedents, however, I do not beleive that a facial challenge to the federal Partial Birth Abortion act would have fared particularly well.

The big problem with making a commerce clause challenge to this specific statute is that it contains a jurisdictional element. Specifically, the prohibition only applies to "partial-birth" abortions that are conducted "in or affecting interstate or foreign commerce." This would likely prevent the facial invalidation of the statute, as it effectively limits the application of the statute to those instances that are within the federal commerce clause power. Under existing precedent (e.g. Jones v. United States interpreting the jurisdictional element in the federal arson statute), the Court would almost certainly have adopted a narrow construction of the jurisdictional element to preserve the statute. Moreover, this approach would also convert as-applied constitutional challenges into statutory cases in which the court would merely consider whether a given occurrence fell within the scope of the statute's jurisdictional scope.

How Many Justices Would Support a Commerce Clause Challenge to the Federal Partial Birth Abortion Ban?

Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday's partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court. At the oral argument, liberal justices Ruth Bader Ginsburg and John Paul Stevens also suggested that they believe that at least some applications of the statute exceed Congress' enumerated powers under the Commerce Clause. I discuss their concerns in more detail here and here.

Assuming for the sake of argument that these four justices would all support a Commerce Clause challenge to the statute, could they pick up a fifth vote? It is difficult to know for sure, but the answer may well be yes. As I explained at the time of his nomination, Justice Alito had a strong record of support for limits on federal power as a court of appeals judge, and he might well continue in that vein on the Supreme Court. It is also possible, though far less likely, that Justice Souter or Justice Breyer (who wrote the Supreme Court's earlier partial birth abortion decision, Stenberg v. Carhart), would place their commitment to abortion rights ahead of their commitment to virtually unlimited federal power.

All of this is of course highly conjectural. Predicting justices' votes on the basis of remarks in oral arguments is a chancy business. Ditto with predictions based on opaque concurring opinions. Only in the case of Justice Thomas am I close to certain about what his vote will be. The other four are considerably more difficult to predict. Moreover, whether or not a Commerce Clause challenge to the partial birth abortion ban succeeds will depend in part on the specific facts of the case. A case addressing a partial birth abortion in a nonprofit clinic involving a woman who did not cross state lines, would be more likely to succeed than one with a commercial clinic or an interstate transaction.

Nonetheless, there is at least some significant chance that a cross-ideological coalition of justices would be willing to support a federalism-based challenge to the congressional partial birth abortion ban. If it does come to pass, it will be hugely important as the first Commerce Clause case in decades where federal power was constrained by a coalition of liberal and conservative justices rather than by a narrow 5-4 majority consisting of the five most conservative members of the Court. In my view (see here for details), judicial enforcement of limits on federal power cannot survive in the long run if it remains a parochial concern of conservatives and libertarians. Just as with judicial enforcement of free speech, freedom of religion, and other constitutional constraints on government power, it requires a broader cross-ideological consensus in order to succeed.

Federalist Society Online Debate on the Partial Birth Abortion case: As part of its new on-line debate series, the Federalist Society is posting a debate on Gonzales v. Carhart upholding the constitutionality of the federal Partial Birth Abortion Act. The debate is principally between Professors Doug Kmiec and Erwin Chemerinsky, but I added my 2 cents. Others such as John Chapman will be commenting later. You can read the entire debate and post your comments here. Here is my response to the initial postings of Kmiec and Chemerinsky:
Both of my friends, Doug Kmiec and Erwin Chemerinsky are partially correct. Doug is right that Gonzales v. Carhart does not directly threaten a women's right to choose to have an abortion. Irwin is right that Carhart does change current law — in particular, the important holding of Stenberg v. Carhart — and, in my view, for the worse.

First, as to the right to have an abortion, because other procedures remain protected, abortions will still be legally available. This procedure was banned because, as popularly described, it seems a lot like infanticide. While pro-life proponents claim all abortions are indistinguishable from infanticide, pro-choice advocates must draw a line between one and the other. Viability — the stage at which a fetus can live outside the womb independently of the mother — provides a useful line because it gives women considerable time to decide whether or not to bear a child. After viability, the only compelling reason for an abortion of any kind is to protect the life or health of the mother, rather than because of family planning.

If "partial birth abortion" consists of the partial delivery of a viable fetus before killing, it certainly looks a lot like infanticide, which is why the federal ban was popular enough to pass. A law banning only this would not be problematic, but merely draw a line between abortion and infanticide in a somewhat different place than is now drawn.

But this statute goes further in two ways: first, it bans the use of this procedure throughout pregnancy, even before viability. Second, it makes no exception to protect the health of the mother. The fact that the procedure is banned before viability means the procedure is not akin to infanticide, unless one believes that all abortion is infanticide, which the Court currently denies. By the same token, the fact that no exception to the ban is made to preserve the health of the mother is evidence that this is about more than preventing infanticide. After all, the very same act is allowed under the statute if necessary in the opinion of a physician to protect the life of the mother, in which case the act itself does not constitute infanticide. So, even though the case does not strike at the heart of the judicial protection of abortion, pro-choice advocates are right to be concerned.

Regrettably, by defining the "health" of the mother so broadly, pro-choice advocates brought this problem on themselves. If a health exception applies, for example, to the emotional health of the mother, then it is the exception that will always swallow the rule, as opponents of partial birth abortion rightly complain. Had the Partial Birth Abortion Act contained a narrowly defined exception for the physical health of the mother, even many pro-choice advocates might have supported it.

What is most unfortunate is how Carhart weakened the constitutional rights of all patients. To reach its result, the Court had to eviscerate the approach it had adopted in 2000, over Justice Kennedy's strident dissent, in the case of Stenberg v. Carhart. (So much for stare decisis!) Put simply, in Stenberg, the Court held that, if there was substantial disagreement among medical authorities over whether a medical procedure such as this one was necessary to preserve the health of the mother, then a woman and her physician could make the choice. In Carhart, however, Justice Kennedy adopted a rational basis standard to uphold the judgment of Congress that such a procedure was never necessary to protect the health of the mother. This means that, contrary to Stenberg, whenever there is a substantial disagreement among medical authorities, Congress gets to make the decision. After all, however it decides it will be supported by some substantial body of medical opinion.

But why should this be? Putting abortion to one side, why should not a patient and her doctor have the liberty to decide on a course of medical treatment so long as their judgment is supported by a substantial body of medical opinion? In other words, when it comes to preserving one's life and health, why should not individual choice, as opposed to Congressional choice, be protected when supported by a rational basis?

The overlooked tragedy of Carhart is that the rights of all patients to preserve their lives and health were seriously weakened by the overreaching of both sides of the abortion debate: by abortion supporters who interpreted a health exception as completely open-ended and by abortion opponents who pushed for a ban that applied before viability and that did not include a narrowly drafted exception for the physical health of the mother. In Carhart, the sick and dying are another collateral damage of the abortion wars. And so too, for that matter, was the enumerated powers scheme of Article I, but since the Court did not address that issue, neither will I.