Wednesday, April 18, 2007

The Partial Birth Abortion Ban and the Comerce Clause

From today's Supreme Court opinion upholding the federal law that prohibits partial birth abortion, Justice Thomas said the following in dissent:
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.

Please, please, please, will somebody please challenge this law under the Commerce Clause? Justice Thomas is practically begging you to! It could bring some common sense back to the Commerce Clause doctrine! Or I suppose it could make things worse if they decide that the law has a substantial effect on interstate commerce. But even if they go that route, there is the advantage that they are exposed as idiots, for whatever that's worth.

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