Justices Thomas and Scalia might have voted to strike down the law

[cor]

had a Commerce Clause objection been raised. It's possible that this law will be revisited and a different result obtained.

http://www.volokh.com/archives/archi...tml#1176959727

"Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday's partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court."

But no one -- perhaps fortunately -- raised the Commerce Clause, so Thomas and Scalia voted with the rest of them to uphold the ban.