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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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Beyond Casey, Justice Kennedy has shown particular impatience for congressional attempts to "overrule" the Supreme Court. The Court addressed an instance of this in the 1997 City of Boerne v. Flores case, where it struck down the Religious Freedom Restoration Act of 1993. Essentially, that act was designed to challenge a prior Court decision that affirmed a criminal ban on peyote, a drug used in certain religious traditions. Justice Kennedy's majority opinion was unambiguous:


When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. [I]t is this Court's precedent, not RFRA, which must control.


Gonzales, then, presents Justice Kennedy with two difficult questions: Is Stenberg controlling precedent with respect to the material issues of law and fact now before the Court? If so, can he support a departure from Stenberg?

EVEN IF THE COURT DECIDES THAT the Partial-Birth Abortion Ban Act is unconstitutional without a health exception, its precise ruling is complicated by its largely overlooked decision in Ayotte v. Planned Parenthood. There, the Court unanimously held that when an abortion restriction violates a woman's constitutional rights, the courts need not strike down the totality of the statute. Rather, the courts can nullify the portions of the statute that present constitutional problems and leave the remainder in place.

Thus, even if the Court holds that the federal ban unconstitutionally restricts abortions necessary to preserve the health of the mother, it need not nullify the statute in its entirety. The Court could leave the ban effective in all cases except the set where the health or life of the mother is at issue.

BUT THE TWO MOST INTERESTING ISSUES that Gonzales v. Carhart might touch on are not before the Court in this case. One of these issues is, of course, the continuing vitality of Roe v. Wade itself. The Roe line of cases is the foundation on which the challenge to the partial-birth abortion ban has been built. If Roe falls, so too does this challenge. But Roe's legitimacy is not before the Court in this case.

Another issue not presented to the Court is the federalism question: Does Congress actually have power under the Constitution to pass this law in the first place, or is this a state-law concern? While most conservatives will be unsympathetic to the abortion-rights argument in Gonzales, they may have mixed feelings about the federalism challenge.

In recent years, the Supreme Court has carefully scrutinized whether Congress has the constitutional power to enact various laws. The purpose of doing so is to maintain limits on Congress' power to legislate matters more properly regulated by the states. In this case, the partial-birth abortion ban was passed pursuant to Congress' Commerce Clause power. As Glenn Reynolds and Brannon Denning have written, the ban may be vulnerable on federalism grounds: "[I]t would be difficult for Congress to demonstrate how a medical procedure--usually regulated by the states--is 'economic' or 'commercial' in nature or 'substantially affects' interstate commerce. Given the small number of these procedures performed each year, it would be hard to meet the Court's relatively high threshold." While federalism is not before the Court in this case, it may form the basis of future challenges if Gonazles upholds the ban.

GONZALES V. CARHART IS AN IMPORTANT case to watch for those who care about the direction abortion jurisprudence may take. At stake is the future of partial-birth abortion in the United States. But the decision may forecast, at least in part, what the Court will decide in the coming challenge to Roe v. Wade.

Daveed Gartenstein-Ross is a Washington, D.C.-based attorney and former D.C. Circuit Court of Appeals clerk who frequently writes about terrorism and legal issues for The Daily Standard. Adam White is an attorney and former editorial page editor of the Harvard Law Record; his discussion of the federalism issues presented by proposed bans on same-sex marriage was recently republished in the tenth edition of DiClerico & Hammock's Points of View (McGraw-Hill, 2005).