Multi-Layered Strategy for Roberts, Choice

I am more of a Daily Kos reader than a diarist, but I did have a thought I wanted to share about the Roberts nomination and a multi-level strategy for the pro-choice position.

First, everyone knows that the right to have an abortion was established in Roe v. Wade.  Before that time, the laws varied by state - if you lived in New York, abortion was legal, in Texas, it was not.

Without a doubt, after Roberts is on the Supreme Court, Roe will be in the cross-hairs yet again, and a variety of new laws will be passed and new cases will come before the Supreme Court.

Let's assume that Roberts is confirmed, and that on the Court, he votes with Rehnquist, Scalia, and Thomas to overturn Roe (4 votes).  Assuming Kennedy, Souter, Breyer, Ginsburg and Stevens uphold Roe & Casey, then Roe will survive Roberts.  

Then the question will be what happens when one of the Roe supporters retires.  That, to me, seems to be the bigger vacancy.

But back to Roberts...let's assume that he eventually makes up a majority to overturn Roe.  After that, there will be no constitutional protections against laws restricting the right to abortion.

And, despite their "states rights" arguments, I would expect the Republicans to pass legislation to outlaw abortion.  Republicans have already said that (in the context of the Schiavo debacle) that some "life related" issues are too important to be left to the states.

But will there be any constitutional protections against this?  In United States v. Lopez, the Supreme Court - led by Scalia and Thomas - ruled that there was a limit to Congress's "interstate commerce" power.  In that case, the Supreme Court struck down the "Gun Free School Zone Act" which made it a federal crime to carry a firearm within a small radius of a school.  The Court held that Congress' power to regulate interstate commerce did not reach regulating the possession of firearms near a school- that would be an entirely intrastate issue.  Since Lopez, other courts have struck down federal laws on Lopez grounds, including the "Violence Against Women Act."

It strikes me that the next line of defense - and, essentially, the next line of questions for Roberts - would be the entirely conservative-backed doctrine of US v. Lopez.  Is the regulation of doctor's practices on more grounds - something that has traditionally fallen to states - really "interstate commerce?"  The ACLU has already put forth this argument.

So, beyond getting Roberts' answers on the Roe questions (How do you feel about substantive due process?  Right to privacy?)  It strikes me that the other questions that should be asked would be related to his position on Lopez.

How far does he think that Congress can go in regulating interstate commerce?

Does he believe that Congress can regulate safe medical practices on moral grounds?

How should the Court review Congress's findings as to whether something affects interstate commerce?  Does he believe that the Court should defer to the historical roles of the states in regulate certain areas?