Religion

More on the PBA ruling

Over at Balkinization, there are two commentaries on today's PBA ruling (Gonzales v. Carhart) that you should read.  Jack Balkin challenges the ruling's connection to the state's interest in protecting human life.  (This relates directly to John O'Callaghan's earlier comment.)  An excerpt:

The Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

Michael Stokes Paulsen criticizes the "pernicious" doctrine of stare decisis, observing:

The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?

From Mirror of Justice posted 2007-04-18.