In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening inCarhart II, is promising for future civil rights legislation.
Seven years ago in Stenberg v. Carhart(Carhart I), the Court held that substantive due process requires that every piece of abortion legislation contain an exception for the health of the mother.Carhart I interpreted Planned Parenthood of Southeastern Pennsylvania v. Casey to mandate a health exception when “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” The Court in Carhart Idid not specify whether Congress or the Court is the appropriate body to judge the strength of the medical authority and determine whether a health exception is necessary.