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Gonzales v. Carhart: What next?

By Robert S. Sargent, Jr.
web posted April 23, 2007

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.  Article X, United States Constitution.

Gonzales v. Carhart, decided last week (4/18/07), upheld the federal law, The Partial Birth Abortion Ban Act of 2003 (Act).  The majority opinion was written by Justice Kennedy, and joined by Scalia, Thomas, Roberts, and Alito.  A lower court (Eighth Circuit) found the Act unconstitutional for the following reasons:  "(1) (The Act) unduly burdened a woman's ability to choose a second-trimester abortion, (2) was too vague, and (3) lacked a health exception as required by Stenberg (a previous case striking down Nebraska's partial birth abortion statute).  The Ninth Circuit agreed and affirmed."  The Supreme Court reversed the lower Court's decisions and declared the Act was Constitutional. 

Reading the opinion, one thing that strikes one are the descriptions of abortion procedures.  I'll summarize.  There are approximately 1.3 million abortions performed each year in the first trimester.  "The most common first-trimester abortion method is vacuum aspiration…in which the physician vacuums out the embryonic tissue."

The usual method in the second trimester is known as "dilation and evacuation (D&E)."  The physician inserts forceps and grips whatever part of the fetus he can and pulls it out of the vagina.  "The friction causes the fetus to tear apart.  For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman."  I'll spare you the following gruesome descriptions.

The final method is a variation on the D&E known as "partial-birth abortion."  Again, I'll spare you the details, but after the fetus has partly emerged, the doctor, with scissors, pokes a hole in the head and vacuums out the brains.  If you want all the details, read the opinion. 

All this, of course, has nothing to do with the law, and I'm sure it's written to get sympathy for the majority's opinion.  In Kennedy's usual dribble, he writes "…some women come to regret their choice to abort the infant life they once created…Severe depression and loss of esteem can follow."  (I didn't know Justice Kennedy was a psychiatrist, and who taught Kennedy how to write opinions?)

All the commentary in the media has been predictable.  The pro-lifers say, "Great! This is the first step in repealing Roe.  And the pro-choicers say, "Disaster! This is the first step in repealing Roe."  There's one thing missing in all this commentary, at least what I've seen.

The first part of the Act reads:  "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both."  Huh?  Affecting commerce?  So this is how Congress gets around the Tenth Amendment (see above):  It puts abortion, which as the Tenth Amendment implies, belongs to the States, under the Commerce Clause!

The first thing that comes to mind is, what the heck are Thomas, and Scalia, self described "Constitutional originalists", doing upholding a Federal law that clearly violates the Tenth Amendment and has nothing to do with commerce?  Are they like the rest of them?  They just rule their personal preferences and forget about "applying the law?"

Let me quote Thomas's concurring opinion, which was joined by Scalia.  This is in its entirety (not including references to cases or footnotes).  "I write separately to reiterate my view that the Court's abortion jurisprudence has no basis in the Constitution.  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."  Period.  I called my Constitutional expert-cousin in Atlanta.  "Even if Thomas felt that the law was unconstitutional for Commerce Clause, or 10th Amendment reasons, he can't rule that way?"  "Absolutely.  The Court, when reviewing lower court's decisions, can only rule on what's before them."

Very interesting!  Thomas is sending a signal.  He's reassuring us supporters "Don't worry, I still operate under principles."  And most interesting, he's telling pro-abortion folks, "If you want to void this statute, bring it before me and challenge the Commerce Clause provision."

Pro-lifers might see this as a defeat for their position, but that would be the wrong take.  It would be a huge victory for Federalism, because I can guarantee you that Thomas and Scalia would uphold any state's statute dealing with any part of the abortion issue (in Stenberg v. Carhart, in theirdissent from the majority, they both voted to uphold Nebraska's partial birth abortion act).  Isn't that what we conservatives want?  Return the question of abortion to the states as the Constitution mandates in the Tenth Amendment.  ESR

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.


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