The Supreme Court decided today, in Gonzales v. Carhart, that the federal Partial-Birth Abortion Ban Act of 2003 is not unconstitutional. The majority consisted of the usual suspects: Kennedy, Roberts, Scalia, Thomas, and Alito; the minority was also predictable: Ginsburg, Stevens, Souter, and Breyer.

My first reaction is: darn, my favorite Justice, Thomas, sold out and failed to strike down the Act as he should have–not because of some nonexistent constitutional “abortion right” or “privacy right”–but because the federal government has no power to regulate such matters. Now Gregory’s going to use this as an example of how the right is not really better than the left. But looking at Thomas’s concurrence, I see that he’s still my favorite:

I join the Court’s opinion because it accurately applies current jurisprudence …. 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.

Aha. So for some reason the idiot pro-choice respondents chose not to attack the constitutionality of the Act on interstate commerce grounds, nor did the liberal minority Justices even note that this would have been a fruitful ground of attack. So wedded are liberals to notions of central federal power, that I guess they’d rather see this “alarming” (as Ginsburg called it) erosion of “privacy rights” than to suggest that maybe the Interstate Commerce clause does not really empower Congress to legislate broadly. After all, if they had succeeded in having the Partial-Birth Abortion Ban Act struck down on IC grounds, that would imply that a host of other federal programs are also unconstitutional. Can’t have that, now.

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