Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents.More at the link. The case -- Gonzales v. Carhart -- is here. I'm about to be off-line for a while, so you will have to discuss this without me.
Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.
ADDED: Justice Thomas, joined only by Justice Scalia, concurs, in an opinion that's easy to read in full:
I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). 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. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring).I note that this does not state that Roe v. Wade should be overturned, only that it was wrongly decided. The question of stare decisis is a separate one. It is also interesting that Thomas thinks perhaps the Commerce Clause might not support the congressional regulation of abortion. Under current doctrine, it seems rather obvious that Congress has this power. Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce. But Thomas has not supported that doctrine.
MORE: The reason Thomas brings up the Commerce Clause, you should understand, is, I think, that he supports overruling Roe v. Wade and relies on the idea that the issue of abortion will, in that event, devolve to the states. But if Congress can regulate abortion, the federalism-based assurances we keep hearing are meaningless -- unless somehow you have a way to believe that Congress would resist this ripe political opportunity.