Sunday, April 29, 2007

Federalism v. Abortion

Thomas' Abortion Opinion Interesting to Note
Los Angeles Daily Journal, April 26, 2007, at 6.

The most important opinion from last week's Supreme Court decision narrowly upholding the federal ban on partial-birth abortions was neither Justice Anthony M. Kennedy's majority nor Justice Ruth Bader Ginsburg's dissent.

It was Justice Clarence Thomas' one paragraph concurring opinion, joined by Justice Antonin Scalia, inviting another challenge to the abortion law rooted in Congress' power to pass legislation pursuant to the Commerce Clause of the Constitution.

This will be the ultimate test case for Scalia and Thomas to gauge their fidelity to the Constitution irrespective of their personal views.

After all, they both want to see Roe v. Wade and its progeny aborted. They said so again last week.

But they have also stated that Congress has limited enumerated powers and any laws passed in excess of those powers are unconstitutional.

In 1995, in United States v. Lopez, the Supreme Court in a 5-4 decision struck down a federal law that made it a crime for anyone to be in possession of a firearm near a school. The majority - which consisted of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Scalia, Kennedy and Thomas - found that guns near schools have nothing to do with regulating interstate commerce and therefore fall outside of Congress' power to regulate. (Most federal laws are passed pursuant to Congress' power to regulate interstate commerce, found in Article 1, Section 8 of the Constitution).

Five years later, in United States v. Morrison, the same five-member majority struck down The Violence Against Women Act for the same reason. Criminalizing violence against women, traditionally within the powers of the states, has nothing to do with interstate commerce. So if violence against women has nothing to do with interstate commerce, the court will be hard-pressed to explain how violence against a fetus does.

I had hoped that the Supreme Court would have struck down this law without even mentioning Roe v. Wade and its progeny. However, as Thomas' concurring opinion pointed out, "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."

I'll leave it to others to speculate as to why this issue was neither raised nor briefed. No doubt someone will take Thomas' invitation and file another suit by week's end - if not done already.

Striking down the federal ban on the ground that it is beyond Congress' power to regulate interstate commerce will have a limited impact in the sense that a majority of five has already stated that a law outlawing this abhorrent procedure will be upheld; leaving to each state to decide for itself whether they want to outlaw this procedure or not.

And that is exactly the way the framers of our Constitution wanted it to be.