Thomas did not consider "as-applied challenges" to be sufficient to protect against the threat of retaliation.

Thus, he disagreed with the concept of 'as-applied' challenges to state laws.

The decision left the door open for future as-applied challenges, and did not address the broader question of whether Congress had the authority to pass the law.

It is contrasted with an as-applied challenge, which alleges that a particular application of a statute is unconstitutional.

This contrasts with a successful as-applied challenge, which will result in a court narrowing the circumstances in which the statute may constitutionally be applied without striking it down.

In upholding the electioneering-communication provision "against a facial challenge in the 2003 decision," the justices said, "we did not purport to resolve future as-applied challenges."

The Court left the door open for as-applied challenges, citing its recent precedent in Ayotte v. Planned Parenthood of New England.

The only two as-applied challenges, he noted, have both been brought by Wisconsin Right to Life's lawyer, James Bopp Jr., who also has another case pending before the court.

Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges.

Turning to the plaintiffs' as-applied challenges, the Court recognized that the "Act, for example, could cover homosexual conduct occurring off base between two consenting adults in the privacy of their home."