The Volokh Conspiracy - Federalist Society Online Debate on Abortion and the Constitution:

The Federalist Society has long been very good at providing balanced and thoughtful debates at its conferences; it now extends that tradition to a debate blog (The Federalist Society Online Debate Series). The first installment is on abortion and the constitution; here's the introduction:

This term, the Supreme Court will decide two cases, Gonzales v. Planned Parenthood and Gonzales v. Carhart, challenging the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003. The act prohibits a doctor from performing a partial birth abortion unless the pregnant woman's life is in danger.

Lower courts have overturned the statute on the grounds that the term "partial birth abortion" does not clearly define the procedure prohibited by the statute and that Congress failed to include an exception for the mother's health (the ground on which the Supreme Court struck down a similar Nebraska law three years earlier in Stenberg v. Carhart). The government argues the act is constitutional because it explicitly bans a particular procedure and because congressional findings collected since the Stenberg case show the procedure is never medically necessary to protect the health of the mother.

Given the replacement of former Justice Sandra Day O'Connor -- a majority voter in the 5-4 opinion invalidating the Nebraska statute -- with now-Justice Samuel Alito, it is uncertain how the Court will rule on this particular issue, as well as how its ruling will affect the broader Roe-Casey framework. This debate seeks to further discussion on the important issues underlying what is perhaps the most hotly contested subject in American law and policy and explores the implications of the reasoning behind the opposing arguments.

Ms. Long, former law clerk to Supreme Court Justice Clarence Thomas and litigation partner at Kirkland & Ellis, is currently serving as counsel to the Judicial Confirmation Network. She argues that Roe is anachronistic because it fails to take into account scientific discoveries about fetal pain and modern advances in medicine that move viability earlier, and she contends that, at the very least, the Court should clarify its required "health exception" so it does not swallow any rule against third trimester abortions. She [argues] the increased safety justification for partial birth abortion is a false one because "if partial-birth abortion is safer because the child isn't dismembered in the womb, it would be safer still to deliver the child intact and then kill her outside the womb" and seeks to demonstrate that women are victimized rather than empowered by a liberal abortion regime.

Ms. Brown, former Assistant U.S. Attorney and director of the first Reproductive Rights Unit of the Civil Rights Bureau of the New York State Attorney General's Office, is a longtime feminist advocate who currently serves as Vice President and Legal Director of Legal Momentum. She disagrees with Ms. Long's characterizations and argues that the current constitutional protections for abortion are necessary to avoid the government imposing upon women its own view of what their role should be. She contends that, "[f]or the tens of millions of women who have had an abortion --- about one in three American women --- the Constitution's protection has allowed them to make that decision with dignity and safety . . . free from the 'compulsion of the State.'" She also takes issue with Ms. Long's suggestion that the current law gives abortion doctors "unfettered discretion" in performing third trimester abortions, pointing out that they are "extremely rare" and that abortion doctors already bear unnecessary risks of penalties for seeking to enable women to live fuller lives.

Click here for the whole thing.

	[Eugene Volokh, April 2, 2007 at 2:31pm] Trackbacks Federalist Society Online Debate on Abortion and the Constitution: The Federalist Society has long been very good at providing balanced and thoughtful debates at its conferences; it now extends that tradition to a debate blog (The Federalist Society Online Debate Series). The first installment is on abortion and the constitution; here's the introduction: This term, the Supreme Court will decide two cases, Gonzales v. Planned Parenthood and Gonzales v. Carhart, challenging the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003. The act prohibits a doctor from performing a partial birth abortion unless the pregnant woman's life is in danger. Lower courts have overturned the statute on the grounds that the term "partial birth abortion" does not clearly define the procedure prohibited by the statute and that Congress failed to include an exception for the mother's health (the ground on which the Supreme Court struck down a similar Nebraska law three years earlier in Stenberg v. Carhart). The government argues the act is constitutional because it explicitly bans a particular procedure and because congressional findings collected since the Stenberg case show the procedure is never medically necessary to protect the health of the mother. Given the replacement of former Justice Sandra Day O'Connor -- a majority voter in the 5-4 opinion invalidating the Nebraska statute -- with now-Justice Samuel Alito, it is uncertain how the Court will rule on this particular issue, as well as how its ruling will affect the broader Roe-Casey framework. This debate seeks to further discussion on the important issues underlying what is perhaps the most hotly contested subject in American law and policy and explores the implications of the reasoning behind the opposing arguments. Ms. Long, former law clerk to Supreme Court Justice Clarence Thomas and litigation partner at Kirkland & Ellis, is currently serving as counsel to the Judicial Confirmation Network. She argues that Roe is anachronistic because it fails to take into account scientific discoveries about fetal pain and modern advances in medicine that move viability earlier, and she contends that, at the very least, the Court should clarify its required "health exception" so it does not swallow any rule against third trimester abortions. She [argues] the increased safety justification for partial birth abortion is a false one because "if partial-birth abortion is safer because the child isn't dismembered in the womb, it would be safer still to deliver the child intact and then kill her outside the womb" and seeks to demonstrate that women are victimized rather than empowered by a liberal abortion regime. Ms. Brown, former Assistant U.S. Attorney and director of the first Reproductive Rights Unit of the Civil Rights Bureau of the New York State Attorney General's Office, is a longtime feminist advocate who currently serves as Vice President and Legal Director of Legal Momentum. She disagrees with Ms. Long's characterizations and argues that the current constitutional protections for abortion are necessary to avoid the government imposing upon women its own view of what their role should be. She contends that, "[f]or the tens of millions of women who have had an abortion --- about one in three American women --- the Constitution's protection has allowed them to make that decision with dignity and safety . . . free from the 'compulsion of the State.'" She also takes issue with Ms. Long's suggestion that the current law gives abortion doctors "unfettered discretion" in performing third trimester abortions, pointing out that they are "extremely rare" and that abortion doctors already bear unnecessary risks of penalties for seeking to enable women to live fuller lives. Click here for the whole thing.