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Abortion on the Horizon

Although it won't topple Roe v. Wade, Gonzales v. Carhart is this year's abortion case to watch.

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Thus, the Partial-Birth Abortion Ban Act lays out Congress' factual findings, and concludes that "the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care." The Act then lists several cases holding that the Supreme Court is required to defer to congressional findings.

IN TRYING TO DETERMINE what the Court will decide in Gonzales v. Carhart, most observers have focused on the probable votes of Chief Justice Roberts and Justice Alito. This singular focus may be misplaced, as Justices Breyer and Kennedy--who previously weighed in on partial-birth abortion in the Stenberg case--may have a surprise or two in store.

Although Justice Breyer wrote the Stenberg opinion and is generally regarded as a liberal vote, the present case touches on a legal issue about which he has forcefully written. At the heart of the debate over whether the federal ban is unconstitutional for lack of a health exception is the question of whose fact findings should be trusted: those of the district court in Stenberg, or those of the U.S. Congress? In his 2001 dissent in Board of Trustees v. Garrett, Justice Breyer delivered a vigorous statement in support judicial deference to congressional findings of fact in a different legal context:

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its [legislative authority pursuant to the Fourteenth Amendment], to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. . . . Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues. Moreover, unlike judges, Members of Congress are elected.


Justice Breyer noted that Congress is not to be bound by the same standards and presumptions applied in the courts. The Partial-Birth Abortion Ban Act makes the same point: Although the Supreme Court was bound by the findings of the trial court, Congress, in crafting policy, is not. Justice Breyer--who recently authored Active Liberty, a book that is in part devoted to defending judicial deference to congressional decision-making--may well agree.

While Justice Breyer may surprise in one direction, Justice Kennedy may surprise in the other. He has played a central role in the Court's abortion jurisprudence, surprising conservatives in Casey by voting to affirm the constitutional right to an abortion established in Roe v. Wade. Nonetheless, the practice of partial-birth abortion seems too much for Justice Kennedy. He voted to uphold the Nebraska law at issue in Stenberg in a dissent that vividly details what actually happens in a partial-birth abortion, and describes it as "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."

The conventional wisdom is that Justice Kennedy will vote to uphold the federal ban, and while the conventional wisdom is probably correct, the doctrine of stare decisis (which holds that prior decisions should almost always be applied in subsequent cases) creates at least some doubt. Justice Kennedy has established himself as a strong defender of stare decisis, as his decision in Casey constitutes the most vigorous public defense of the doctrine in the past several decades: "The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. . . . A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that."