Today, the Supreme Court reversed course on its abortion jurisimprudence and upheld the federal ban on partial-birth abortion. As someone who expressed doubts about the Roberts nomination, I am relieved to see that he has not gone down the path of the author of the opinion by disappointing those who supported his nomination once on the Court. This decision is critical in terms of the long-term goal of restoring protection to the unborn. The Court has decided that legislatures have more leeway than it had previously allowed. Now, state legislatures in particular can go farther in protecting the rights of those in the earliest stages of life.
Having said that, as Justices Scalia and Alito pointed out, the Court was not asked to decide whether the law fell within Congress’s authority under the Commerce Clause, and left open the possibility of challenges on those grounds. While Congress has the independent authority to determine whether a law is Constitutional, it was wrong in this case, as the law clearly is not related to interstate commerce. It is likely that individual cases challenging the statute will prove successful, as even two of the conservatives on the Court seemed to suggest that they would side with those challenging it.
As such, the true victory here is in a majority determining that legislatures have the right to regulate abortion. Now, the battle will begin shifting to the states, where it belongs, as the Court has recognized the limitations of its power. Pro-lifers can expect one victory after another as limitations on abortionists will now increase. What’s more, one would expect this new-found humility to extend to other issues, and that the Court will now defer more to the legislatures in terms of policy-making and return to its real job of deciding individual cases. This is a red letter day in terms of judicial restraint and the separation of powers as much as it is a pro-life victory.