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Partial Birth Heads Back to the Supreme Court

February 21st, 2006

The justices have granted cert in Gonzales v. Carhart which challenges the Partial Birth Abortion Ban Act passed by Congress a few years ago. It was widely believed the law would not pass judicial review because the law is nearly identical to a Nebraska law struck down in 2000. That case had a 5-4 split with Justice O’Connor casting the majority vote on the grounds that the ban provided no exception for the health of the mother.

Of course, the court doesn’t look like it did in 2000. Chief Justice Roberts has replaced Rehnquist (one conservative for another) and Justice Alito has replaced O’Connor (one conservative for a moderate). Strikes me as though many social conservatives are looking towards this case as a great indicator of whether they finally achieved the judicial majority they’ve been fighting for the past thirty years. Maybe they are right…

…but maybe they are wrong. This act does not strike me as the ideal legislation to test their new majority because it includes the sticky issue of federalism. The Act is an exercise of federal power, which means it must fit within one of the enumerated powers granted to Congress by Article I § 8 of the Constitution. The more liberal judges have taken a rather expansive reading of those grants of power leading to expansive federal power. Conservative justices, the ones who find a limited right to privacy in the Constitution, take a rather narrow reading of those same powers. So a conundrum presents itself to our newly minted highest court in the land: yes, they can uphold the the act and strike a blow to the right to privacy, but in so doing they will expand the federal power to areas traditionally left to the states.

I’m not a judicial conservative, so I don’t know how they might want the case to come out. Seems like a real double edge sword. I’m told that this kind of Supreme Court litigation is planned years out with long term strategies and top political operatives. If so, why did they go with a federal statute? A state law would have presented far fewer prickly federalism issues and provided a much cleaner holding for the Right to hold up as a victory trophy.

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