What a Difference a Judge Makes

Today the US Supreme Court issued an opinion in Gonzales v. Carhart upholding the federal ban on partial birth abortion. For some reason, blogger won't allow me to insert a link, but here's one place you can go to read the opinion: http://supreme.usatoday.findlaw.com/supreme_court/2006/november/05-38-gonzales-v-carhart.html.

In the federal law, Congress had made a determination that a health exception wasn't necessary to preserve the health of the mother. The Eighth Circuit struck down the law, and the government immediately petitioned for cert.

The shocker for me was that Justice Kennedy wrote this decision. He was joined by Justices Thomas, Scalia and Alito, as well as Chief Justice Roberts. I loved Thomas' concurrence. Short, sweet to the point, and focused on what is really in the Constitution.

It will be interesting to watch how courts and the legislatures respond to this opinion. As the Court reiterated, "[t]he Casey Court reaffirmed what it termed Roe's three-part "essential holding": First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman's life or health. And third, the State has legitimate interests from the pregnancy's outset in protecting the health of the woman and the life of the fetus that may become a child." It also found that the act was not a substantional obstacle to late-term, pre-viable abortions. Thus, it looks like there is fresh opportunities for states to restrict post-viability abortions.

I'm pretty excited to see what's coming from this court. And if you wonder why the President matters, you've just witnessed an example of the difference that two justices can make on the court.