After the Supreme Court's decision in Gonzales v. Carhart,1 much was made of an alleged victory for the pro-life movement.2 The Partial Birth Abortion Ban Act of 2003 ("PBABA" or the "Act"),3 which is similar to the Nebraska ban struck down just seven years earlier, was upheld by a 5-4 vote. The news of such a victory, though, was greatly exaggerated.
While the Court in Carhart held that the PBABA did not violate the constitutional right to privacy, the Act was inexplicably spared an attack on a potential second ground: whether it was a proper exercise of Congress's Commerce Clause authority. The failure to do so cost the chance of gaining the support of a new "swing vote" in federal abortion cases. The most likely candidate for this new "swing vote" is Justice Clarence Thomas, or perhaps other Justices like him who are opposed to an expansive application of the Commerce Clause authority.5
The replacement of Justice Sandra Day O'Connor with Justice Samuel Alito ended the five vote majority the pro-choice proponents had in Stenberg v. Carhart to strike down certain partial-birth abortion bans on privacy grounds. Pro-choice advocates must now, therefore, gain their fifth vote by appealing to the federalism concerns of the other Justices. Indeed, prior to Carhart, commentators anticipated a challenge on Commerce Clause grounds and analyzed the merits of such an argument.6 All of those commentators understandably discussed the holdings of United States v. Lopez and United States v. Morrison? yet none of them addressed the jurisprudence of Justice Thomas, who is the most likely candidate to cast his vote against federal abortion restrictions on Commerce Clause grounds.9 The sustainability of the PBABA from the perspective of Justice Thomas's Commerce Clause jurisprudence, therefore, must be evaluated because it is likely to be of central concern in the next round of litigation challenging the constitutionality of the PBABA.
If the PBABA cannot survive an attack on both privacy and Commerce Clause grounds, is its demise imminent? The answer to that question depends on the propriety of the other potential justification of the PBABA - whether Congress has authority to ban partial-birth abortion pursuant to its enforcement power under Section Five of the Fourteenth Amendment. Under this approach, proponents of the PBABA could argue that fetuses "partially born" are constitutional "persons" entitled to the equal protection of the laws.
Would Justices like Thomas or Scalia be more sympathetic to such a justification? While they may be sympathetic to Congress treating partially born fetuses as constitutional persons, the Court's current jurisprudence regarding the scope of congressional authority under Section Five of the Fourteenth Amendment will make it difficult for proponents of the PBABA to make the case. The most difficult obstacle is Supreme Court precedent that holds that Congress cannot pass laws pursuant to its Fourteenth Amendment enforcement power that are directed at non-state actors.10 However, that absolute prohibition is not consistent with the original understanding of the Equal Protection Clause,11 and proponents of the PBABA would have to persuade Justices like Thomas and Scalia that the original understanding does not support such a prohibition.
Nevertheless, even if the government could successfully persuade Justices like Thomas or Scalia that laws passed pursuant to the Fourteenth Amendment enforcement power can be directed at individuals, Congress still needs to change the partial-birth abortion ban. In order to be consistent with the original understanding of the Fourteenth Amendment, the PBABA cannot apply uniformly throughout the nation. If the government wishes to preserve a partial-birth abortion ban, therefore, it must re-write the statute.
These federalism questions, incidentally, are not limited to the specific issue of partial-birth abortion. …