For the next several days, a legitimate collective groan will be heard across the liberal spectrum based on the Supreme Court's upholding of the Partial Birth Abortion Ban. While the opinion is genuinely disturbing- in the words of Justice Ginsburg, it is a "flimsy and transparent justification for upholding...without any exceptions for a woman's health"-there is a silver lining in the Thomas concurrence.
What Thomas wrote isn't surprising. It's been clear for quite some time where he and Scalia stand on Roe v. Wade. The silver lining is in who didn't join the opinion.
Since President Bush appointed John Roberts and Samuel Alito to serve on our nation's highest court, there has been much concern among progressives that they would prove to be "Originalists" in the mold of Scalia and Thomas. This form of jurisprudence rejects the living constitution approach and looks to the intentions of the founding fathers to determine what rights were enshrined in our constitution. They uniformly reject the "right to privacy" first enunciated in Griswold v. Connecticut (overturning a state law prohibiting married couples from receiving contraceptives).
If Alito and Roberts had joined the Thomas concurrence, it would be clear that they believe the constitution is dead, and the only way to enshrine extra-constitutional fundamental rights is through the onerous process of constitutional amendment. Adding their two votes to those of Scalia and Thomas, a solid block of four justices would reject any and all claims of constitutional protection based on privacy. This would have far-reaching implications for the right to abortion, the right of privacy in sexual intimacy (see Lawrence v. Texas), the right to medical decision-making, and the right to contraceptives.
Our silver lining, thin though it may seem in light of today's holding, is that neither new justice joined the Thomas concurrence. While the outcome of Kennedy's opinion chips away at Roe v. Wade, it at least operates within the framework of the abortion precedents (finding no "undue burden"). The facial challenge to the law failed, but a more specific "as applied" challenge may result in a finding of unconstitutionality. We now know that Scalia and Thomas have not found new originalist allies in the Bush appointees. This bodes well for future cases, and for the future endurance of Roe v. Wade, in its new, limited form.
One final point: Thomas seems to invite a Commerce Clause challenge to the Partial Birth Abortion Ban, which implies that he may find it beyond the scope of congressional authority. Let's see how fast a new challenge based upon a lack of congressional power starts working its way through the court.
It's a sad day for the right to choose, but let's keep our chins up. We lost the battle, but not the war...