the question of] whether it was a proper exercise of Congress' Commerce Clause authority" because opponents of the PBABA
failed to raise the issue.
Of course, one can only speculate as to whether the PBABA
would have survived under the more robust Due Process Clause in existence prior to the bifurcation of rights; nonetheless, the Court's distaste for economic rights foreclosed several arguments for the Carhart plaintiffs.
77) In the place of a health exception, Congress had included in the PBABA
a series of dubious factual findings, declaring that a health exception was unnecessary and that the courts were required to defer to its factual findings.
imposes criminal penalties on "[a]ny physician who,
effort was capped with the Court's verdict in Gonzales v.
Under the PBABA
, a practitioner employing one of the banned methods
Bush signed into law the PBABA
, (130) and President Bush has pledged to appoint "conservative" Justices like Justices Thomas and Scalia, who, along with Chief Justice Rehnquist, consistently have voted to expressly overrule Roe.
Unquestionably Congress was fully aware of Stenberg and its potential constitutional implications when it revisited the issue and passed PBABA
Though the statute does not specifically define the clinical circumstances under which the above-described safe harbor can be invoked, the PBABA
does provide a framework for assessing whether liability should lie.
After Congress debated and passed the PBABA
and Bill Clinton vetoed it, the poll numbers in July 1996 were: 22% (always legal), 58% (legal in some situations), and 15% (always illegal)--similar to the current numbers (Jan.
65) Relatedly, the federal PBABA
uses the word "woman" only once, in one subsection, to clarify that "[a] woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense .
In reversing the lower court judgments against PBABA
, the Carhart II majority sent another muddled message about deference.