One Year After the Supreme Court’s Partial-Birth-Abortion Ruling

Ed Whelan writes at National Review Online:

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.

This fact is worth pondering, not only because the abortion industry had already compiled its best evidence of alleged health risks but also because it has long demonstrated its zeal to race to court on a moment’s notice. Why hasn’t it brought any as-applied challenges?

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