Opinion: Papist plots and Commerce Clause conundrums

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Time will tell whether Wednesday’s Supreme Court ruling on “partial-birth” abortion is the beginning of a rollback for women’s rights or a self-contained setback for an unusual and unsettling abortion procedure. But two less important aspects of Gonzales v. Carhart are attracting interest.

The first is that all five members of the majority, including Chief Justice John Roberts, are Roman Catholics. But before pro-choice forces sniff out a papist plot, they should reflect on a couple of facts.

First, the late Justice William Brennan, a strong supporter of legal abortion, was a Catholic.

More to the point, Justice Anthony Kennedy, the author of this week’s decision, also signed the 1992 opinion in Planned Parenthood v. Casey reaffirming the “essential holding” of Roe v. Wade. If the Vatican were going to excommunicate Catholic judges for joining in pro-abortion rulings, Kennedy’s vote in Casey would count as a mortal sin, while his vote in Gonzales would be a venial one.

In any event, the religion of the five justices in the partial-birth majority is probably less relevant than the fact that Republicans appointed them all. If John Kerry had beaten George W. Bush, the Catholic monolith might not have existed.

A second, less discussed, oddity of this week’s decision is the concurring opinion by Justice Clarence Thomas. Most attention has focused on the fact that the Thomas opinion (joined by Antonin Scalia) agitated for overruling Roe v. Wade. But con-law junkies will note something else: a concession by Thomas that the federal partial-birth bill might be unconstitutional under Thomas’ own judicial philosophy.

In a passage that probably baffled some readers, Thomas wrote: ‘I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court.’

Huh? What does the Commerce Clause of the Constitution have to do with abortion? Well, it’s that clause that has allowed Congress to regulate lots of matters that conservatives think should be subject only to state law.

But if it’s overreaching for Congress to regulate medical marijuana, as Thomas believes, where does it get the authority to pass the Partial-Birth Abortion Ban Act of 2003? You guessed it: The Commerce Clause! The law itself says: ‘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.’

I have written about this paradox before. As with so many principles, whether one believes in a strong Commerce Clause depends on whose ideological ox being gored.