Plenty of folk more qualified to comment are already all over today’s Supreme Court decision upholding a 2003 band on D&X abortions, but a couple things struck me. First, the Court accepts at face value Congress’ (apparently false) finding that D&X is never “medically necessary,” which is why the court let the law stand even though it contains an exception in cases where D&X is needed to preserve a woman’s life, but no exemption to protect her health—previously a dealbreaker for the court. The obvious incoherence here is: How could it possibly be that a procedure would sometimes be medically necessary to protect someone’s life, but never to protect health? Are we supposed to believe that the only conditions under which it is necessary are necessarily fatal? But only slightly less obvious: If it weren’t necessary to preserve health—which is to say, if it weren’t a substantially safer option than the alternative procedures in at least some cases—why would doctors ever perform it? It is, by all accounts, a fairly messy and unpleasant procedure, and there’s no reason to expect it would be any cheaper or simpler. So if it were really true that it weren’t sometimes the best option from the perspective of the patient’s health, the ban would be redundant: Nobody would be doing it.

Second, the purported rationale for the law is the protection of the “sanctity of life.” But by the majority’s own logic, that can’t be right. That is, the crucial reason the ban is supposed to pass muster is that there are always alternative procedures available, meaning the law doesn’t actually burden the right to abortion, it just constrains the methods by which it can be carried out. So the law is constitutional precisely on the premise that it won’t actually cause there to be any fewer abortions. Either that will turn out to be false, in which case the court should revisit and reverse its decision, or it will turn out to be true, in which case it’s opaque why conservatives should be happy about this. (Well, no, not that opaque: They want to start wedging a camel’s nose of anti-abortion precedent into the jurisprudential tent flap.)

Intriguingly, as David Bernstein and Ilya Somin note, there’s a glimmer of hope here for future challenges in Thomas’ concurrence (joined by Scalia), though it may make progressives feel (to borrow Tom Lehrer’s phrase) a bit like a Christian Scientist with appendicitis: Thomas observes that neither side briefed the question of whether the ban exceeded Congress’ power under the Commerce Clause, hinting that he (and Scalia?) might be receptive to such an argument. Jonathan Adler is skeptical, however.