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