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Supreme Court Upholds Federal Law Banning 'Partial Birth' Abortions

The Supreme Court issued a 5-4 decision today in Gonzales v. Carhart, upholding a federal law that bans "partial birth" abortion, without providing any exceptions for medical necessity or health of the mother. The New York Times, and others carried the story (see Appellate Blog for a running round-up).

As this summary from Jurist points out, Carhart represents the first time that the Supreme Court has affirmed a complete ban on an abortion procedure. In part, the Court deferred to extensive congressional findings that concluded that partial birth abortion was never justified by medical necessity. But pehaps in an effort to temper the scope of the ruling, Justice Kennedy, who authored the majority, noted that petitioners could still attempt to challenge the legislation on an "as-applied" basis, through presenting facts showing that a partial birth abortion is a medical necessity in a particular case. Justice Ginsburg read her dissent from the bench, criticizing the majority's decision as "alarming," and a departure from precedent like Planned Parenthood v. Casey and Steinberg v. Carhart, which both recognized that states could not proscribe the abortion procedure where necessary to protect a woman's health.

There's discussion, but not much surprise over the ruling, from the blogosphere. Most, including Justice Ginsberg herself, attribute the Court's apparent change in position on partial birth abortion to the new composition of the Court (Ginsburg made note of the changed composition in the final paragraph of her dissent). For example, SCOTUS Blog points out that:

Alito's replacement of retired Justice Sandra Day O'Connor made the most difference in turning the Court around from its 2000 decision in the Stenberg case. O'Connor was in the majority in that decision, as were the four dissenters in this new decision.

And there are also some unusual "takes" on the decision that go beyond the typical "woman's right to choose" vs. "government's right to protect the fetus." Ilya Somin at Volokh examines the federalism question of whether Congress has authority to regulate abortion procedures under the Commerce Clause. And even more interesting, Steph Tai at Concurring Opinions ponders how the Carhart Court's willingness to defer to Congressional findings to resolve scientific uncertainty might apply in other cases such as those involving global warming, where scientific and legal findings are intermingled.

Posted by Carolyn Elefant on April 18, 2007 at 06:41 PM | Permalink | Comments (0)


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