Follow up: Carhart v Gonzales may have SCOTUS review

The 8th circs ruling striking down the Federal partial birth abortion law may head to the Supreme Court as Roe v Wade's legacy might not be whether the case will remain the law of the land, but rather whether and how much the Supreme Court will allow States and Federal Government to regulate it. The following NyTimes analysis concludes that without Justice OConnor on the Supreme Court, many abortion restrictions would stand. With a more conservative Justice, O Connor's policy of striking down "unduly burdensome". NY Time believes the basic right to abortion, declared in Roe v. Wade in 1973, will survive regardless of who replaces Justice O'Connor, given that the current majority for Roe is 6 to 3. Chief Justice William H. Rehnquist was one of the two original dissenters from the Roe decision; if he retires, as has been widely speculated, President Bush would presumably replace him with a similar conservative, so that would not change the balance on Roe.Gadsden Times. Not only did Roe v Wade find within a constitutional right to privacy, it also found that women have a constitutional right to necessary medical treatment to preserve their health. "Abortion opponents assert that such health exceptions (in later pregnancies) give doctors who perform abortions too much discretion to circumvent restrictions by invoking the woman's health, even if it involves emotional and nonphysical issues. Essentially, they say, "health" is so broadly interpreted that it renders many laws meaningless.The Stenberg v. Carhart decision in 2000, the Court 5-to-4 with Justice O'Connor in the majority, invalidated laws restricting late term abortions when it struck down a Nebraska ban on two grounds: proscribed procedures might be safer for some women; therefore, the court said, the law must have an exception allowing its use to preserve the woman's health. The Stenberg court also held that the procedure being outlawed was so vaguely defined that it could be viewed as applying to other, more common abortion procedures - and thus amounted to an undue burden on women. The latest ruling from the 8th Circuit struck down the federal partial birth abortion law on health exception grounds, ruling that "the constitutional requirement of a health exception applies to all abortion statutes, without regard to precisely how the statute regulates abortion." But, the appeals court went on, a single doctor's opinion does not suffice, rather "substantial medical authority" will override the Legislatures judgment that a procedure is not beneficial to the mother in some instances. The 8th Circuit court ruled, "a health exception is constitutionally required. SCOTUS accepted for arguments in its next term Ayotte v. Planned Parenthood, concerning the New Hampshire parental-notification law. The two legal questionsfor review are: the first is whether such laws must also contain an exception for pregnant minors whose health is at risk. The second issue is what standard courts must use in evaluating challenges to abortion laws that have not yet taken effect. In ordinary constitutional challenges plaintiffs pursuing a facial challenge to a law must prove that there is "no set of circumstances" under which the law would be valid. Again the Supremes have tipped their hat to the feminist lobby and relaxed the standards for facial challenges in the abortion setting; an abortion regulation may in some settings, may be facially unconstitutional if only "a large fraction" of women directly affected would suffer an "undue burden" in obtaining an abortion. The state of New Hampshire is challenging that approach." Reversing any of the partial birth abortion cases in the lower federal courts or the Ayotte case will have far reaching consequences for Roe and Casey: instead of the near exalted status the Supreme Court has given abortion and contraception, Roe privacy and health rights may very well recede to the status of private property, cf Kelo or States rights, cf Raich v. Ashcroft.