Friday, April 27, 2007

More on partial-birth abortion

Stubborn Facts has a pair of addendums to its excellent coverage of the Carhart ruling (for my own previous post, go here.)

Simon Dodd provides a seven-page analysis of the ruling. It echoes bits of SF's other coverage, particularly the important distinction between an "as applied" and "facial" challenge. The Carhart case was a facial challenge, and that is one of the hardest to prove. So to that extent, the ruling is narrow indeed. All the Supreme Court said, in essence, is that the law isn't unconstitutional in all cases but could well be unconstitutional in some. Indeed, by explicitly leaving the door open for "as applied" challenges, they seemed to indicate that such challenges might well succeed.

Further the plaintiffs never raised the question of whether Congress had the power to pass the law in the first place, which means the Court didn't address that.

On the other hand, he argues, it does undermine the long-held necessity of including a "mother's health" exception to abortion bans, by the simple expedient of Congress declaring that the procedure in question is "never medically necessary." As long as medical opinion is legitimately in dispute on that, no exception is needed: As far as the courts are concerned, Congress has the right to draw a clear, bright line where none exists in reality.

In a separate post, Dodd notes the absence of any reference to foreign law, and surmises it may have something to do with the inconvenient nature of that law when it comes to abortion.

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