Gonzales v. Carhart/Concurrence Thomas
Justice Thomas, with whom Justice Scalia joins, concurring.
I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U.S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Partial-Birth Abortion Ban Act of 2003 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, 727, n. 2 (2005) (Thomas, J., concurring).