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Further proof partial-birth abortions were never needed

by | Apr 20, 2020

By Dave Andrusko

Ed Whelan writes a fine column for National Review Online under the category of “Law & The Courts.” It’s titled “This Day in Liberal Judicial Activism.” 

Over the weekend—April 18 to be specific—he wrote about a follow up to the famous (to pro-lifers) case of Gonzales v. Carhart. As you recall, that was the 2007 Supreme Court decision that (by the narrowest of 5-4 margins) rejected a facial challenge to the federal ban enacted in 2003 on the grotesque partial-birth abortion technique.

What I had forgotten, or never knew, was that dissenter Justice Ruth Bader Ginsburg had predicted on April 18, 2007, that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E [her characterization of the ban on partial-birth abortion] prohibition.” 

[For us non-lawyers, Whelan offers this helpful distinction. “A facial challenge to a law (or to a set of legal provisions) aims to strike down the entire law, while an as-applied challenge seeks merely to prevent the application of the law in particular, defined circumstances.”]

Whelan tells us “In fact, years later, not a single such challenge will have been brought. Why not”?  A very brief explanation followed by a link to a prior essay he had written– “The Mystery of the Missing Lawsuits?”—where he concludes

In bringing an as-applied challenge, the abortion industry would have to show (in the Court’s words in Gonzales v. Carhart) that “in discrete and well-defined circumstances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used” to “protect the health of the woman.” It hasn’t dared even to try to do so.

In other words, all the dire predictions pro-abortionists insisted would ensue if partial-ban abortions were prohibited were as bogus as everything else proponents ladled out about this horrific abortion “technique.”

Not the first time, mind you, nor will it be the last.

Categories: Judicial
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