Supreme Court Upholds Partial-Birth Abortion Ban

The United States Supreme Court has upheld a federal ban on partial-birth abortions. I believe that Orin Kerr is correct in stating that this decision was based on very narrow grounds. The Court’s 5-4 opinion does not disturb the precedents of either Roe or Casey, nor does it preclude a later as-applied challenge to the Act.

Still, this is a rather significant change for the Court and shows the impact of the recent vacancies on the Court and the judicial inclinations of the men who have recently been appointed. This decision would have likely gone the other way had Justice O’Connor been on the Court, and the impact of Chief Justice Roberts and Justice Alito being added to the court will be seen as other contentious issues come before the Court.

It is also interesting to note the concurrence of Justice Thomas and Justice Scalia — while the issue of the Commerce Clause was not an issue for litigation in this case, it appears that both of them are willing to more readily accept Commerce Clause challenges to laws such as this. That could have a great impact if they can get other members of the Court to follow suit — however, given that Justice Scalia hasn’t been perfectly consistent on Commerce Clause issues (see Raich

) it remains to be seen whether this is a portent of more strict Commerce Clause review/

This is a win for opponents of abortion, even if it is a somewhat narrow one. It doesn’t do what ultimately needs to be done — reject the Roe and Casey line of cases which are examples of massive judicial overreach — but at least it gives a good start towards the reigning in of abortion in the United States.