From The New York Times: By Charles Fried
Justice Anthony Kennedy’s decision for the court in the abortion case last week does not change my mind, because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Kansas partial birth abortion ban. The Kansas law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden. The federal ban cured the vagueness, but sought to overcome the medical testimony by a legislative proclamation of a fact that is not a fact: that the procedure was never safer for the mother.
The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).
It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.
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