Wednesday, November 08, 2006

SCT Series: Gonzales v. Carhart

The Supreme Court today will hear oral augments in one of the Term's most high-profile cases. Gonzales v. Carhart challenges the federal Partial-Birth Abortion Act of 2003. The Act is being contested as unduly burdensome because it does not include an exception permitting an otherwise prohibited procedure when that procedure is necessary to protect the health of the woman.

The case raises an interesting question, one that has implications well beyond the abortion context: to what extent should the Court defer to Congressional factual findings that themselves effectively determine the scope of the constitutional right at issue? As the Daily Standard points out, this question is similar to one the Court has struggled with in its federalism cases. (The case also bears a more obvious relationship to those cases. As the Cato Institute noted today in the New York Times, many view the law as an inappropriately expansive and intrusive use of Congress's regulatory power).

Another issue to watch: as Erwin Chemerinsky notes here, because the Court struck down a virtually identical law just six years ago in Stenberg v. Carhart, Carhart also will give us a peek at Chief Justice Roberts' and Justice Alito's commitment to precedent. Professor Chemerinsky also ponders whether Justice Kennedy, a dissenter in Stenberg but now the Court's new "swing" justice, will try to find a way to invalidate the federal law without overturning Stenberg.

Scotusblog notes that C-Span's web radio will be broadcasting the oral arguments.

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