You may recall that in Gonzales v. Carhart, Justice Thomas concurred separately with Justice Scalia to note that the Partial-Birth Abortion ban may have been susceptible to a commerce clause challenge, but because the parties did not raise it, the issue was waived (a point Thomas has made twice in the past week).

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).

The partial-birth ban, codified at 18 U.S.C. 1531, only had this cursory reference to interstate commerce:

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both

Justice Kennedy’s majority opinion only references the commerce clause issue obliquely.

A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession.

Today the House passed a new abortion bill, that has zero chance of being passed by the Senate. This bill, titled the “Pain-Capable Unborn Child Protection Act,” unlike the partial-birth abortion ban, has a few relevant “constitutional findings” that articulate the government’s “compelling” governmental interest” and its basis under the commerce clause, as well as (why not) equal protection, due process, and section 5 of the 14th amendment.

(12) It is the purpose of the Congress to assert a compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

(13) The compelling governmental interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain is intended to be separate from and independent of the compelling governmental interest in protecting the lives of unborn children from the stage of viability, and neither governmental interest is intended to replace the other.

(14) Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.

Would this satisfy Justice Thomas’s concerns in Carhart? Also, it is interesting that the finding refers to the “Supreme Court’s Commerce Clause precedents” as opposed to the “Constitution’s grants of powers.” As if the former is not coterminous with the latter. Perhaps this is a snide, backdoor way of saying that what the Supreme Court gave is greater than what the Constitution gave. But if that is the case, Congress seems perfectly comfortable with relying on these ultra vires powers.