A Carhart II sequel in Second Circuit
on Apr 27, 2007 at 3:32 pm
The Second Circuit Court has asked the two sides in one of the three test cases on the constitutionality of the first federal abortion ban to file new briefs on what is to be done with that case. In an order dated Wednesday (text available on Howard Bashman’s How Appealing blog , the Circuit Court panel split 2-1 in calling for supplemental briefs on the impact of the Supreme Court’s April 18 ruling in Gonzales v. Carhart (05=380) and a companion case) upholding the federal “Partial-Birth Abortion Ban Act” of 2003.
The majority said it was “following our usual practice of allowing the parties to present their views following a relevant Supreme Court decision.” The dissenter, Circuit Judge Chester J. Straub, said “the only path available” to the Circuit Court was to wipe out its earlier ruling striking down the federal law and to send the case back to District Court for an order upholding the law “pursuant to Carhart.” Said Judge Straub: “I believe that Carhart requires this result….There simply is no remedy available much less one requiring the further expression of views in the context of this case.”
The Second Circuit’s decision in the case of National Abortion Federation, et al., v. Gonzales (Circuit docket 04-5201) was not before the Supreme Court in Carhar. In its original 2-1 ruling on in January 2006, the Circuit Court had found the 2003 Act unconstitutional; Judge Straub dissented, arguing it was a valid exercise of Congress’ power. The Circuit Court, however, had ordered further briefing on a remedy, then stayed that order pending the Supreme Court ruling. The Act before the Circuit Court, of course, was the same one at issue before the Supreme Court.
A speculative thought from this post’s author:
One issue that was not decided by the Supreme Court — it was not raised by the parties, although amici did so — was whether the 2003 Act was a valid use of Congress’ power under the Commerce Clause, since the Act involved federal regulation of medical practice. Justice Anthony M. Kennedy’s majority opinion said the Act was passed “under the Commerce Clause” (slip opinion at p. 36), but Justices Clarence Thomas and Antonin Scalia said in a concurring opinion that the validity of such Commerce Clause regulation was not before the Court. Once the case in the Second Circuit goes back to District Court, as presumably it will, it is possible that that issue could be raised directly. It has become clear for some time, however, that abortion rights groups have not been willing to challenge Congress under the Commerce Clause, because they do not want to undercut a future plea for federal legislation seeking to protect women’s rights or minority rights. William and Mary law professor Neal Devins discusses this strategic consideration in a just-released article in the St. John’s Journal of Legal Commentary; here is a link to the issue; from that link, one can access a PDF version of Professor Devins’ article.
(Thanks to Howard Bashman for flagging the Circuit Court order.)
