Supreme Court upholds Congressional power with abortion case

As the news has plastered it all over my computer screen, I cannot help but notice that the Supreme Court has issued its opinion in Gonzales v. Carhart. The case basically upheld a Federal law banning partial birth abortions. I have no opinion on the matter and make only general uninformed questions about the powers of Congress as explained below.

I haven't read through the 73-page slip opinion (and am impressed with how all of the presidential candidates have had time to read and digest it so quickly), but I am not surprised by the way the 5-4 decision fell. But, (and this is the only thing I will comment on), I am a little surprised at Thomas's and Scalia's concurrence (which I did read in full since it was very short). It starts at page 45 of the slip op. and reads in pertinent part:

"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."

Again, I haven't read Carhart, and will simply assume that the concurrence wouldn't have made that statement had the majority addressed that issue. Assuming they did not, then, I find this sentence to be a pretty interesting tell into the future of the abortion debate. It's not really about whether abortion is good or bad or the right of the mother or the government; it's about the Commerce Clause. Given the way Gonzales v. Raich fell (8-1), the question (to me) is whether the need to regulate abortions is "economic" under the Commerce Clause or is it a matter otherwise reserved for the states? The answer to this question in the future test case perhaps could resolve whether the Wickard/Raich line is the right one in this situation or is the Lopez/Morrison line more apt? Only time will tell.

Another interesting thing to think about is what would be the result if the Court determines that abortion regulation is outside of the federal government's power and thus it's up to the states to decide. If State A says it's okay and a bordering state (State B) says it's not, wouldn't this present a problem of disparate treatment for the rural poor of State A who would then have to travel to State B if they so chose? Would this trigger the negative commerce clause? Or does this paradox merely expose the need for federal government regulation in the first place? Or, even more radically, maybe this is the push the NOW needs to get the equal rights for women amendment passed, which would make this a much different constitutional issue, maybe. I'm not sure what the answer to any of these questions are, or even if they are in the right ballpark of the current abortion debate. In either case, I suspect that only further litigation will help flesh them out.

Or, as astutely pointed out in Raich, if you don't like the federal law, there exists an easy way to change it: "But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress."

Tags: carhart, scalia thomas concurrence