April 18, 2007
PARTIAL-BIRTH ABORTION BAN UPHELD. I believe that the ban should have been struck down on commerce clause grounds as outside Congress's power to regulate interstate commerce. Interestingly, the opinion contains this observation from Justice Thomas:
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.
I hope that it is raised in a future case.
UPDATE: Brendan Loy notes confusion at the AP.
ANOTHER UPDATE: Avoid the rush! Get your abortion now! Hmm.
And yes, I realize that under Raich the argument above has less strength, but I think that Raich was wrongly decided. More here.