Gonzales v. Carhart: An Important Step Forward.(partial-birth abortion)

The April 18 Supreme Court ruling in Gonzales v. Carhart is huge. The new five-justice majority upheld the federal law banning partial-birth abortionsbut, perhaps even more importantly, it adopted a more objective approach to evaluating abortion-regulating laws in general.

Abortionists can no longer get away with bringing a child to within inches of live-birth status before killing her. This alone is an important step forward.

What may get us closer to the day Roe's tyranny ends is the significant changes the Court announced in how it will handle challenges to abortion laws. Should future Justices apply the standards in Gonzales v. Carhart significant progress can be made. Of course that assumes the next one or two Justices confirmed to the Court do not harbor a stronger allegiance to Roe than to the Constitution.

There's a reason why pro-life victories are rare in the Supreme Court and in the federal courts. It is because the Supreme Court had stacked the deck against abortion regulations by the way it answered five questions: 1) how a case is brought; 2) what standard of review is appropriate; 3) how statutory language is interpreted; 4) whether any claim of a "health" benefit will trump any attempt to restrict abortion; and 5) how much weight is given to the testimony of abortion providers.

Let's look at the "old rules" and how the Court intends to rectify them.

1) To challenge a law, normally plaintiffs must allege actual harm that has (or would) result from the law "as applied" to them. If plaintiffs win, the law will stand, but the Court will define a narrow exception to its application to the plaintiffs and similarly situated people. Outside the protected area of free speech, speculative, hypothetical challenges are not permitted. Also, broad "facial challenges"the kind that declare an entire law unconstitutional before it actually even takes effectrequire showing that "no set of circumstances exist under which the [law] would be constitutional."

But in the abortion realm, the Court has routinely permitted facial challenges by abortionists and industry groups, to strike down entire laws on the basis of hypothetical harm to imaginary future abortion patients, which might occur in rare circumstances (if ever). If plaintiffs come up with even one hypothetical case, it has been enough to void the entire statute.