April 18, 2017


The Mystery of the Missing Lawsuits (Edward Whelan, 4/18/17, National Review)

Something remarkable has happened over the past year: nothing.

Exactly one year ago today, the Supreme Court in Gonzales v. Carhart rejected a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003. Confronting "documented medical disagreement whether the Act's prohibition [on partial-birth abortion] would ever impose significant health risks on women," the five-justice majority ruled that such disagreement about health risks in particular circumstances did not warrant invalidating the act in its entirety. Instead, the Court virtually invited practitioners of partial-birth abortion and their allies to bring so-called as-applied challenges that would carve out from the Act's scope any circumstances in which partial-birth abortion might be shown to be necessary to preserve the mother's health. (See my essay "The Face-Off Over Partial-Birth Abortion" for a fuller discussion of the distinction between facial and as-applied challenges.)

In dissent, Justice Ginsburg predicted that these as-applied challenges would "be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [Act's] prohibition." According to Ginsburg, "the record already includes hundreds and hundreds of pages of testimony identifying 'discrete and well-defined instances' in which recourse to an intact D&E [i.e., partial-birth abortion] would better protect the health of women with particular conditions."

So how many as-applied challenges have been filed over the past year? Zero. [...]

Let me offer my own best guess why the abortion industry has brought no as-applied challenges over the past year: It realizes that it has no prospect of winning because its vaunted medical evidence is, and always has been, very feeble.

That was clearly the assessment of the judge who most carefully examined the evidence, federal district judge (and Clinton appointee) Richard Conway Casey. In his lengthy 2004 ruling in National Abortion Federation v. Ashcroft, Judge Casey concluded that the government's expert witnesses "reasonably and effectively refuted Plaintiffs' proffered bases for the opinion that [partial-birth abortion] has safety advantages over other second-trimester abortion procedures." Casey stated that the government's experts had demonstrated that some of the proffered reasons were "incoherent" and not "credible" and that others were "merely theoretical." Providing examples of several meritless claims, Casey categorically stated: "In no case involving these or other maternal health conditions could Plaintiffs point to a specific patient or actual circumstance in which [partial-birth abortion] w
as necessary to protect a woman's health."

Posted by at April 18, 2017 10:11 AM