Commerce Clause Hypothetical Addendum

[J. Noble]

If the decision upholding the state ban on ninth month abortions was 
5-4, then even if the replacement of Rehnquist and O'Connor by 
Roberts and Alito cost the petitioner two votes, she could still 
squeeze out a 5-4 win if Thomas stuck to his guns and concurred on 
Commerce Clause grounds with the equally steadfast dissenters from 
the abortion ruling on the shelf-life of her SDP right. It couldn't 
get any better unless your hypo had Thomas writing the 5-4 abortion 
decision before stepping up to provide the decisive vote to stem its 
erosion of the right to abortion.

You suggested that "while medical marijuana can seep into the 
interstate market, an abortion can't." But doesn't the federal law 
squelch the interstate market that would bloom if the ninth month 
abortion was banned in some states but not others? Part of my problem 
with the dissenters in Raich is that they blinked the fact that if 
intrastate production doesn't apparently affect interstate commerce, 
it's only because federal law prohibits the interstate commerce that 
would otherwise be more obviously affected. If intrastate production 
is allowed to meet demand in some states but not others, there's 
going to be an interstate market even if federal law says there can't 
be. Discrete production and general demand drives commerce, and it 
can't be stopped except by taking measures to contain demand and 
block distribution that would themselves have a more than substantial 
affect on interstate commerce.

John Noble

At 11:01 AM -0500 2/10/06, DavidEBernstein at aol.com wrote:
>Oh, and the herbalist is her friend, and accepts no money for the tonic.
>
>David E. Bernstein
>Visiting Professor
>University of Michigan School of Law
>Professor
>George Mason University School of Law
>http://mason.gmu.edu/~dbernste
>
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