Justice Thomas and the Partial Birth Abortion Ban Act of 2003

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As I’m prepping to teach the commerce clause in a couple of weeks and re-reading the cases, I’m struck by how virtually impossible it will be for Justice Thomas to remain consistent to his past opinions and uphold the Partial Birth Abortion Ban Act of 2003 that is presently before the Court.

In the recent commerce clause cases, all of the Justices have agreed with the substantial effects test for interstate commerce (disagreeing over, among other things, the economic activity requirement) . . . except Thomas. He goes much further and disagrees with that test and the aggregation principle as well. His writing in these cases makes it hard to imagine how he could be consistent and uphold Congress’ right to pass this (or any, for that matter) restriction on abortion. A couple of choice examples:

From Printz: In my “revisionist” view, the Federal Government’s authority under the Commerce Clause, which merely allocates to Congress the power “to regulate Commerce … among the several States,” does not extend to the regulation of wholly intra state, point-of-sale transactions.

From Lopez: [favorably describing Gibbons] At the same time, the Court took great pains to make clear that Congress could not regulate commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.” Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State” were but a small part “of that immense mass of legislation … not surrendered to a general government.” (emphasis added)

Physicians who perform the procedure are engaging in “wholly intra state, point-of-sale transactions” regarding procedures prohibited by a federal “health law[].”

The federal law does have a “jurisdictional hook,” applying only to physicians “who, in or affecting interstate or foreign commerce,” perform the forbidden procedure. But, that won’t save the statute for Thomas (or really for the others since they require a “substantial” effect), as the quotes above show.

It’s dangerous to rely on Justices being exactingly principled in an area as contentious as abortion, but if there’s anyone who might fit that bill, it’s Justice Thomas and his obsession with restoring the commerce clause to his conception of its original meaning. So, maybe he‘ll provide the fifth vote to strike down the law and we won’t have to worry about Roberts or Alito replacing O’Connor’s vote? Or can anyone point out how he can remain true to his past writing on the commerce clause and uphold this law?

– David S. Cohen

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0 Responses to Justice Thomas and the Partial Birth Abortion Ban Act of 2003

  1. Meredith says:

    I was thinking something along the same lines. Did anyone even argue it? All of the NARAL and ACS talks I’ve attended suggested that they were using stare decisis as their mantra to the conservatives.

    Honestly, I left every talk cringing for the fate of liberalism. It a) demonstrated that the liberals who need to “get it” don’t and b) that most liberals don’t know how to use conservative ideology against conservatives.

    Which brings me to a slightly tangential true story about how this can work in practice:

    Federalist: “C’mon Mer. You’re good with money — your parents and relatives were businessmen, you had a business-intensive UG degree, and you’re the only liberal I’ve ever met who’s against LRAPs on economic grounds. Why aren’t you a Republican? Why are most socially liberal/economically conservative(*) women Democrats?”

    Me: “Because they support economic policies that would cripple me.”

    Federalist: “What on earth are you talking about? Once you start working for a firm, you’ll be the one getting all the tax breaks.”

    Me: “Well, let’s leave aside the fact that Reagan and W’s spending will cripple our nation’s economy when we’re 40 to 50. Let’s just look at me and my personalized lifetime CBA. (cost-benefit analysis.) See the magnitude of the difference between pregnancy and non-pregnancy? Assuming I don’t make partner at a V100 firm, my lifetime opportunity cost from childrearing will be 15 million dollars. That’s the conservative estimate. If I get lucky and do make partner at a V100, it will likely be in the 30-50 million range. Keep in mind that can run as high as 75-100 million for V5 rainmakers. With that in mind, can you honestly tell me that abortion rights and easy contraceptive access is less important economically than some tax cuts amounting to, at most, 3-8 million?”

    Federalist: [stunned silence for about thirty seconds] “Oh my God, I never thought about it that way. If I were a woman I’d be a Democrat.”

    (*) I’m a balanced budget economic conservative — not a “Big Business can do no wrong!” economic conservative. This divide is also something liberals can use to their advantage, but don’t.

  2. There is no commerce clause issue raised in the briefs.

  3. True, the parties didn’t raise it, but an amicus brief by the California Medical Association did, and it got the attention of Ginsberg and Stevens in the oral argument in the second case, as they engaged in a bit of back-and-forth with Clement over the commerce clause. There’s no way Thomas doesn’t know this is a big issue looming in this case. Of course, if he wants to ignore it, that’s his prerogative, but he does so at the peril of approving a federal health regulation that he has in the past cast major doubt on.

  4. Ian says:

    I agree that Thomas, if he is consistent, will cast the fifth vote to strike down the Partial Birth Abortion Ban Act, but this doesn’t do us any good. All Thomas needs to do is write an opinion that begins thusly and it will cover all of his pro-Lochner, anti-Choice bases quite nicely:

    “I join the opinion of the dissent insofar as it holds that the Due Process Clause provides no right to choose an abortion. Indeed, I would overrule Roe v. Wade outright. I therefore concur only in the result reached by the plurality, and write separately to explain why the Partial Birth Abortion Ban Act exceeds Congress’ enumerated powers”

    By writing such an opinion, Justice Thomas might knock out a single act of Congress, but he would free the states up to do all kinds of nasty things in the process.

  5. TheLawFairy says:

    Maybe I’m being completely obtuse, but — we think Kennedy’s siding with the gov? He seemed reasonable in the transcript…

  6. But Kennedy, presumably, wouldn’t agree with overturning Roe, so there wouldn’t be five votes for that. And, I have confidence the Chief, with his judicial modesty mantra, wouldn’t go that far in this particular case, especially since he wouldn’t want his Court to overturn Roe in such a backhanded manner.

  7. LawFairy – Kennedy’s vote isn’t certain, but he had a virulently anti-choice dissent in the state “partial birth” case. He could certainly change his mind, but if you read that dissent, it’s really hard to see that happening. But, I think you’re right – he was more reasonable at this recent oral argument.

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