The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The likely replacement of Justice Anthony Kennedy by Brett Kavanaugh, or some other new, more conservative Supreme Court justice indicates that the Court is likely to be more willing to uphold restrictions on abortion than in the past. Even if Roe v. Wade is not completely overruled, its scope is likely to be narrowed. While most commentators suggest that this change would give the states greater autonomy on abortion policy, Cornell Law Professor Michael Dorf notes that Congress—if it remains under GOP control—might adopt new abortion restrictions of its own. Indeed, a GOP-controlled Congress previously passed the Partial Birth Abortion Act of 2003, and the House of Representatives has passed a bill that would ban abortion after the 20th week of pregnancy (though it is unlikely to get through the Senate). Even if the Republicans do not maintain control of both houses of Congress in the upcoming fall election, they will likely have it again in the short to medium-term future, given the closely divided nature of American politics in recent years.
Federal restrictions on abortion pose a much greater threat to the pro-choice cause than state ones do, because they cannot be as easily avoided by traveling to another jurisdiction to get an abortion in an area where it is legal. Going abroad to get an abortion is often much more difficult than going to another state.
Should Congress adopt new federal restrictions on abortion, Dorf suggest that Justice Clarence Thomas—the most conservative member of the Court—might become the unlikely savior of abortion rights:
To prevent that outcome, pro-choice voters must make their voices heard in congressional elections, but if they fail to do so in time, there is one person who could rescue abortion from restrictive nationwide laws: Justice Clarence Thomas might join the Supreme Court's four Democratic appointees to invalidate such laws.
Justice Thomas is a highly unlikely hero of the pro-choice movement. He raised eyebrows when he told Senators during his 1991 confirmation hearing that he didn't "remember personally engaging" in discussions of abortion as a law student in the 1970s. And since his appointment, Justice Thomas has never voted to invalidate any challenged abortion restriction. Just two years ago, in a case from Texas, he wrote: "I remain fundamentally opposed to the Court's abortion jurisprudence."
Yet Justice Thomas has also indicated that he would like to see the power of Congress rolled back to its eighteenth-century foundations. Hence, in a 2005 case, he voted to strike down a federal law banning the local cultivation and use of marijuana, splitting with fellow conservative Justice Antonin Scalia. Most tellingly, when he joined the Court's majority upholding the federal Partial Birth Abortion Ban Act in 2007, Justice Thomas emphasized that the Court's ruling rejected a challenge based on the right to abortion but left open the possibility that the law might not be "a permissible exercise of Congress' power under the Commerce Clause."
Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out.
I am not convinced that Thomas "would like to see the power of Congress rolled back to its eighteenth-century foundations." His Commerce Clause opinions indicate that he would like to reconsider expansive modern interpretations of the Clause, but also that he recognizes some erroneous precedents might be too entrenched to overrule. As he put it in a concurring opinion in United States v. Lopez (1995), "Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean" in this field. But there is no doubt Thomas would be happy to roll back federal power a great deal relative to where it is now. Gonzales v. Raich, the medical marijuana case mentioned by Dorf, shows he is willing to do so in even in cases where the federal law in question is one favored by many conservatives. And, as Dorf notes, Thomas' concurring opinion in the 2007 Partial Birth Abortion Act case indicates that he is open to considering such a move when it comes to federal abortion regulations.
Thus, Dorf is right to counsel pro-choice groups to raise federalism arguments in future cases challenging federal abortion regulations. If they are not raised, Thomas (and perhaps other justices) will not consider them. In addition, they would be well advised to argue for the overruling of Raich. If Raich is left intact, its extraordinarily broad interpretation of federal power to regulate interstate commerce can is easily enough to encompass nearly all abortions. Raich held that the Commerce Clause gives Congress the power to regulate virtually any "economic activity" defined as anything that involves the "production, distribution, and consumption of commodities." That's how the Court was able to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the "consumption" and "distribution" of commodities, such as medical supplies. Thomas wrote a forceful dissent in Raich, and would likely be happy to vote to overrule it. But he has also stated that he will not vote to overturn a precedent unless one of the parties to the case asks him to do so. Pro-choice litigants challenging federal abortion regulations should take him up on that invitation. They could potentially end up with a decision in their favor under which four liberal justices vote to strike down a federal abortion regulation on individual rights grounds, while Thomas (and perhaps some other conservative justices) vote to strike down based on federalism considerations.
For what it is worth, this advice to abortion rights advocates is not motivated solely by my longstanding desire to see federal power rolled back. While I have doubts about the validity of Roe v. Wade, I am also generally pro-choice, and I do not want to see federal restrictions on abortion (and also oppose most state restrictions, as well).
That said, there is good reason to get rid of Raich even aside from the potential effects on abortion. For reasons I explained in this article about the case, it is one of the worst Supreme Court federalism rulings ever. From an originalist point of view, the idea that the Commerce Clause gives Congress virtually unlimited authority to ban the possession of any product of any kind is highly implausible. As recently as the 1920s, federal Prohibition of alcohol was general understood to require a constitutional amendment, because it was beyond the original scope of federal power. From the standpoint of living constitutionalism, the idea that such enormously broad federal authority is necessary, is also highly questionable—particularly in a complex and diverse society like ours.
Overruling Raich is one example of how both right and left stand to gain from tighter enforcement of constitutional limits on federal power. Prominent liberal scholars such as Heather Gerken and Jeffrey Rosen have already urged fellow progressives to reconsider federalism. Perhaps the abortion question will encourage additional rethinking on along these lines. For their part, conservatives should also strive to avoid "fair weather federalism," an area where many have fallen short in the Trump era.