< link rel="DCTERMS.replaces" href="http://fumare.us/" > < meta name="DC.identifier" content="http://fumare.blogspot.com" > <!-- --><style type="text/css">@import url(https://www.blogger.com/static/v1/v-css/navbar/3334278262-classic.css); div.b-mobile {display:none;} </style> </head> <body><script type="text/javascript"> function setAttributeOnload(object, attribute, val) { if(window.addEventListener) { window.addEventListener('load', function(){ object[attribute] = val; }, false); } else { window.attachEvent('onload', function(){ object[attribute] = val; }); } } </script> <div id="navbar-iframe-container"></div> <script type="text/javascript" src="https://apis.google.com/js/plusone.js"></script> <script type="text/javascript"> gapi.load("gapi.iframes:gapi.iframes.style.bubble", function() { if (gapi.iframes && gapi.iframes.getContext) { gapi.iframes.getContext().openChild({ url: 'https://www.blogger.com/navbar.g?targetBlogID\x3d12407651\x26blogName\x3dFUMARE\x26publishMode\x3dPUBLISH_MODE_BLOGSPOT\x26navbarType\x3dBLACK\x26layoutType\x3dCLASSIC\x26searchRoot\x3dhttp://fumare.blogspot.com/search\x26blogLocale\x3den_US\x26v\x3d2\x26homepageUrl\x3dhttp://fumare.blogspot.com/\x26vt\x3d6298351012122011485', where: document.getElementById("navbar-iframe-container"), id: "navbar-iframe" }); } }); </script>

FUMARE

Law, culture, and Catholicism...up in smoke!

Friday, February 24, 2006

Gonzales v. Carhart: A Sign Of Things To Come

Those who are curious about how recently-confirmed Justice Alito and Chief Justice Roberts will rule on the contentious issue of abortion will not have to wait long. Last Tuesday, the U.S. Supreme Court granted the government's petition for a writ of certioari in Gonzales v. Carhart, a case that will put squarely before the Court the issue of the constitutionality of the Partial-Birth Abortion Ban Act of 2003.

Since its enactment, the Partial-Birth Abortion Ban Act has been declared unconstitutional by three different federal district courts, and, subsequently, all of those decisions were affirmed on appeal. Gonzales v. Carhart arises from a case decided by a panel of the U.S. Court of Appeals for the Eighth Circuit. Incidentally, or perhaps intentionally, the Second and Ninth Circuits issued their opinions on the same day that Justice Alito was confirmed.

The primary issue in Gonzales v. Carhart is whether the Partial-Birth Abortion Act is unconstitutional because it does not contain an exception for the health of the mother. In Stenberg v. Carhart, the Supreme Court invalidated a Nebraska statute banning partial-birth abortion because, while it contained an exception for cases in which partial-birth abortion was necessary to preserve the life of the mother, it lacked a corresponding exception for the health of the mother. The Court declared that such a statute must include an exception for the health of the mother "where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health[.]" The Court also concluded the statute was unconstitutional because it prohibited not only procedures commonly referred to as partial-birth abortions, but also a more frequently used procedure known as standard dilation and evacuation. Stenberg was decided by a 5 to 4 vote, with Justice O'Connor providing the critical swing vote, while Justices Scalia, Thomas, Rehnquist, and Kennedy dissented.

In 2003, Congress passed, and President Bush signed, the Partial-Birth Abortion Ban Act of 2003. In response to the requirements of Stenberg, Congress included within the language of the Act a number of factual findings concerning the medical necessity of partial-birth abortion, including its ultimate finding that "partial-birth abortion is never medically indicated to preserve the health of the mother"; in fact, Congress found that partial birth abortion "poses serious risks to the health of a woman undergoing the procedure." Despite these findings, all the federal courts who have considered the issue have determined that the Act's lack of a health exception is unconstitutional under Stenberg.

Although Gonzales v. Carhart implicates grave issues of life and death, the outcome of the case, as usual, will boil down to mundane legal issues. The real dispute in Gonzales v. Carhart will likely turn on whether the Eighth Circuit applied the wrong standard of review in reaching its decision. The government has argued that Supreme Court precedent requires that the factual findings of Congress be given deference if those findings are supported by substantial evidence. The Eighth Circuit determined that this standard was irrelevant because, under Stenberg, the dispositive question is whether substantial evidence exists to support the medical necessity of partial-birth abortions, without regard to the factual conclusions of the district court, or even those of Congress. To the extent that Gonzales v. Carhart will turn on the level of deference owed to Congressional fact-finding, it is somewhat similar to another recent Supreme Court decision implicating life issues, Gonzales v. Oregon, which turned on the level of deference owed to the Attorney General's interpretation of his own regulations to prohibit physician-assisted suicide in Oregon.

How will the Court rule? Justice Kennedy dissented in Stenberg, but the viability of Stenberg has not been made an issue by the parties. Nonetheless, there is at least a decent possibility that he will vote to uphold the ban. Assuming that Kennedy is joined by Justices Scalia and Thomas, that leaves Chief Justice Roberts and Justice Alito as the possible fourth and fifth votes. Interestingly, while on the Third Circuit, Alito held that the New Jersey Partial-Birth Abortion Ban Act was unconstitutional; in fact, Alito concurred separately to express his view, not adhered to by the majority, that the Act was unconstitutional under Stenberg precisely because "the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother." That is precisely the issue in Gonzales v. Carhart. Of course, Alito reached that conclusion in the absence of a Congressional finding that partial-birth abortion is never medically necessary for the health of the mother.

|