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Summary of Partial-Birth Ruling: Thomas’s Concurrence



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In a one-paragraph concurrence (joined by Justice Scalia), Justice Thomas makes two points:  (1) The Court’s abortion jurisprudence has no basis in the Constitution.  (2) The question whether the Act is a permissible exercise of Congress’s Commerce Clause power was not before the Court.

 

On the broader Roe/Casey question, I would not read anything into the fact that the Chief Justice and Justice Alito do not join this concurrence, as the majority opinion was carefully written on the assumption that the Casey framework applies.  On the Commerce Clause question, the Act’s jurisdictional hook would suffice, under existing precedents, to establish Congress’s power.  (Of course, Thomas or Scalia might reject, and decline to apply, those precedents.)


Tags: Whelan


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