Monday, March 06, 2006

"Partial Birth Abortions"

Thanks to Mikhaela, I was made aware of a rather important detail in the federal ban on so-called "Partial Birth Abortions," which the Supreme Court recently agreed to review -- it does NOT contain an exception for the health of the mother (obviously, I don't study this issue often enough).

However, I have to disagree with Feministe's conclusion about the likelihood that the Court will uphold the ban, which is summed up by the last sentence of the post: "It's over, kids." I don't necessarily think that the Court's ruling is a foregone conclusion in this case. It is clear is that Justice Anthony Kennedy has become the swing vote on a number of key constitutional issues, including abortion, and it is helpful to examine his prior holdings. Many people, like Feministe, predict that Kennedy will likely side with Scalia, Thomas, Roberts, and Alito to rule in favor of the ban, based on his dissent in Stenberg v. Carhart (2000), where he voted to uphold Nebraska's ban on partial-birth abortions.

Not so fast, says constitutional law professor Vikram David Amar. He argues that the issue at hand in Stenberg, for Kennedy, was actually how much deference should be given to legislative factfinding, in terms of Congress' power to determine the "legislative fact" that PBA's are never medically necessary to protect the health of the mother. In contrast, the issue in the current case points more towards the standard in Planned Parenthood v. Casey (thanks in part to the precedent on the deference issue established by the majority in Stenberg), which says that a pregnant woman has a constitutional right to abortion procedures that are "necessary, in appropriate medical judgment, for the preservation of [her] life or health." Kennedy voted with the majority in Casey.

Moreover, Amar says that Kennedy has a history of not reacting too kindly to such Congressional "test cases," when Congress tries to pass laws that directly contravene previous Court holdings because they disagree with those holdings.

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