Sometime in the next few months, the Senate will vote on whether or not to kill Roe v. Wade. Judge Brett Kavanaugh, who Donald Trump nominated to replace retiring Justice Anthony Kennedy, is hostile to abortion rights and would join a Court that already has four anti-abortion votes.
Though there is some uncertainty about whether a Court with two Trump appointees would actually use the words “Roe v. Wade is overruled,” or whether it would simply uphold every abortion restriction presented to it while pretending that Roe remains good law, the result will be the same: if Kavanaugh is confirmed, expect abortion rights to end in many conservative states.
When this happens, anti-abortion groups will almost certainly push for a national ban — and, barring a massive realignment in America’s partisan coalitions, it is likely they will eventually have a Congress willing to enact such a law and a president willing to sign it. The question is what happens next.
A handful of pro-choice law professors have an out-of-the-box proposal: enlist Justice Clarence Thomas as an ally in the fight against a federal abortion ban. As Cornell professor Michael Dorf writes at Take Care, when Thomas “joined the Court’s majority upholding the federal Partial Birth Abortion Ban Act in 2007,” he also “emphasized that the Court’s ruling rejected a challenge based on the right to abortion but left open the possibility that the law might not be ‘a permissible exercise of Congress’ power under the Commerce Clause.’”
Thus, Dorf suggests, a pro-choice litigant could file a lawsuit claiming that the federal abortion ban is unconstitutional under Thomas’ preferred theory, and hope that he will give them the fifth vote to strike the ban down.
This is a terrible idea. It is a terrible idea because it could permanently sacrifice a myriad of progressive priorities for the sake of a transient victory. It is also a terrible idea that, at least for the moment, top advocates for abortion rights appear reluctant to embrace.
Yet it is also a terrible idea that highlights the sort of dilemma liberals are likely to face over and over again if Kavanaugh is confirmed. Judges like Thomas and Kavanaugh want to transform America in ways that could lock in conservative rule for the foreseeable future. But judges also deal primarily in broad legal doctrines that, at least on occasion, can cut in unexpected directions.
Justice Thomas has a pet legal theory that would nuke countless progressive accomplishments, and it could also provide some shield against a federal abortion ban purely by accident. But that doesn’t mean that progressives should indulge judges like Thomas. In the case of a national abortion ban, the price is simply too high.
Clarence Thomas: Unlikely pro-choice hero?
The 2007 case Professor Dorf cites is Gonzales v. Carhart, where Justice Thomas joined his four most conservative colleagues to uphold a federal ban on certain kinds of abortion procedures. Thomas’s opinion in Carhart is just a single paragraph.
I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey. I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution. 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.
Thomas makes two points here. He thinks that Roe and similar cases have “no basis in the Constitution,” but he also suggests that federal regulation of abortion is beyond Congress’ lawful authority. The implication is that abortion is solely a state matter, and that the federal government cannot enact an abortion ban.
So it is likely that, if a pro-choice litigant brought the right kind of challenge to a federal abortion ban, they could win Thomas’ vote. But the price of that vote would be very high.
To explain, the “Commerce Clause” that Thomas refers to in his Carhart opinion is Congress’ power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Though both early Supreme Court precedents and more modern decisions hold that the Commerce Clause permits a broad range of federal economic regulation, Thomas believes the clause should be read as it was originally understood in 1918.
That was the year the Supreme Court handed down Hammer v. Dagenhart, which struck down a federal ban on child labor.
The theory of Dagenhart, which Justice Thomas embraced in a 1995 concurring opinion, is that the word “commerce” refers only to the transit of goods for sale across state lines, and not to activities such as manufacturing or mining that produce those same goods. Thus, Congress could not ban child labor generally, because most child workers were only involved in production of goods and not transportation, and because most child laborers worked only in a single state. (If Congress wanted to ban child labor aboard freight trains, presumably Thomas would approve).
Similarly, under cases like Dagenhart, Congress would not be allowed to ban abortions because abortion is a medical procedure that takes place in a single state.
The Supreme Court eventually rejected Dagenhart‘s distinction between “commerce” and activities that are necessary to commerce for a variety of reasons, one of which was that the distinction proved completely unworkable in practice. If Congress can regulate the transit of goods across state lines, why can’t it ban goods produced by factories that do not pay their workers an adequate wage? Should companies that only do business within one particular state be immune to federal laws that bind their multi-state competitors? And what if a company has both intrastate and interstate customers? Are its workers protected by federal law only when they handle products intended for multi-state distribution?
Modern Supreme Court precedents provide that, with the possible exception of major health legislation signed by African-American presidents, Congress may regulate “an economic ‘class of activities’ that have a substantial effect on interstate commerce.”
This is why, in a world without Roe v. Wade, a federal ban on abortion would be constitutional. Abortion is a service provided by professionals, often at a cost. Many of these professionals travel across state lines to provide this service. They are trained in medical schools across the country. They perform the abortions in clinics that are often funded by donors from other states. They use medical equipment that was manufactured in other states and that traveled in interstate commerce. And, in a world where Roe is overruled, many pregnant people will travel across state lines to receive abortions.
There’s no question that abortion is an activity that substantially affects interstate commerce.
The price of Thomas’ vote
But let’s assume, for a moment, that Thomas’ views prevailed in a lawsuit challenging a federal abortion ban. What might that mean for other federal laws?
Consider Thomas’ concurring opinion in United States v. Lopez, where he explained why he believes that the power to regulate interstate “commerce” does not reach activities such as manufacturing. “When a manufacturer produces a car,” the justice wrote, “parts may come from different States or other nations and hence may have been in the flow of commerce at one time,” but the actual manufacturing of car from those separate parts “takes place at a discrete site.”
Manufacturing is not an interstate activity, at least in Thomas’ view. It’s an activity that typically takes place entirely within one state.
But lots of economic activities fit this description. Suppose that a plumbing company only works on toilets and shower pipes located within a single state. If it fires an employee because that employee is black, should it be immune from suit under federal civil rights laws? What if a contractor that only performs construction work in one state refuses to pay the minimum wage? If the nurses in a local hospital wish to unionize, does the National Labor Relations Act not protect them because they are only providing care that doesn’t cross state lines?
A Supreme Court decision holding that abortions can’t be regulated under the Commerce Clause could immunize the entire service sector from federal regulation.
In fairness, it is unclear that Thomas could assemble five votes for such a radical outcome. His Lopez opinion was joined by no other justice — though the Court’s membership changed considerably since Lopez was decided nearly a quarter century ago. As George Mason University law professor Ilya Somin writes, a lawsuit challenging a federal abortion ban might be able to assemble an unusual coalition, where “four liberal justices vote to strike down a federal abortion regulation on individual rights grounds, while Thomas (and perhaps some other conservative justices) vote to strike down based on federalism considerations.”
Maybe, but this trick only works if less than four other conservatives join Thomas’ opinion, and it is not at all clear that Thomas wouldn’t be able to form a majority in such an unusual case.
Neil Gorsuch, who occupies the seat that Senate Republicans held open for year until Trump could fill it, appears even more eager to own the libs than Justice Thomas.
Justice Samuel Alito is a staunch opponent of abortion who would probably prefer to see a federal abortion ban upheld, but Alito is also a strategic partisan who may throw his vote to Thomas if the alternative is a decision striking down the ban without giving conservatives anything in return.
The least likely conservative justice to join Thomas is Chief Justice John Roberts, who has, at times, warned his fellow conservatives against asking for too much. But Roberts’ conservatism appears to be tempered largely by his belief that his Court should not be seen as pushing a partisan agenda. He’d be much more likely to join a decision nuking the federal government’s power to enact progressive legislation if he knew that the headlines the next day would read “Supreme Court strikes down abortion ban.”
The gambit that Dorf and Somin describe, in other words, depends upon the Supreme Court’s conservatives acting unstrategically. It depends on at least one of them choosing to stand on principle when they have a golden opportunity to hand liberals a multi-generational defeat.
Won’t get fooled again
At least for the time being, pro-choice groups appear unlikely to roll the dice. Earlier this month, after Dorf published his piece suggesting the Thomas Gambit, journalist Mike Sacks asked NARAL Pro-Choice America president Ilyse Hogue what she thought of Dorf’s suggestion. Hogue was skeptical.
fact that Breyer had raised several times during oral arguments that you would have to apply the same measure of free speech. So could he do what you suggest? Sure. Would he? No. And I'm not willing to find out. I'm from TX. I have seen the devastation of no access first hand…
— ilyse hogue (@ilyseh) July 19, 2018
NIFLA, as Hogue notes, is a stunningly unprincipled decision. It involved a California law requiring crisis pregnancy centers — anti-abortion groups that often masquerade as reproductive health centers in order to trick pregnant people out of having abortions — to disclose certain information that would have helped steer patients towards genuine clinics. The Supreme Court struck down this law in a 5-4 decision by Justice Thomas.
The thing about NIFLA is that it was a genuinely difficult case. There is a long line of Supreme Court decisions holding that the law may not compel people to speak against their will, but many courts held that these decisions do not apply to state laws requiring abortion clinics to recite an anti-abortion message to their patients. NIFLA could have either upheld the California law on the same legal theory that permits anti-abortion compelled speech, or it could have held that both sorts of laws must be struck down.
Thomas’ opinion took a third option. It struck down the California law, while claiming that laws requiring abortion providers to engage in anti-abortion speech are just fine and dandy. Thomas effectively held that abortion providers have fewer First Amendment rights than abortion opponents.
Asking the Court’s conservative bloc to be principled in an abortion case, in other words, is a dangerous game. And if litigants embrace the Thomas Gambit, millions of Americans are likely to get burned.