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Bench Memos

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Judicial Restraint and “Facial” Challenges



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On NRO today is my essay “The Face-Off Over Partial-Birth Abortion”.  As I explain there: 

Underlying the divide between Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent are two very different approaches to assessing so-called “facial” challenges to abortion regulations. The difference between these approaches reveals the enormous gap between the majority’s sound exercise of judicial restraint and the dissent’s aggressive judicial activism. 

The bottom line is that even if there are special circumstances in which the partial-birth abortion ban would pose a genuine threat to a mother’s health (and even if one assumes that the application of the ban in those circumstances would be unconstitutional), that would provide no basis for striking down the entire law.  On the facial challenge to the partial-birth abortion ban, the majority position upholding the ban should have been a unanimous slam-dunk winner.


Tags: Whelan


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