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Bench Memos

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Abortion and “Health”



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Jonathan Adler is right that the Eighth Circuit decision on partial-birth abortion may put abortion front and center in the coming fight. Maybe abortion was center-stage anyway. Maybe not: Same-sex marriage and the Court’s continuing devotion to secularism (confirmed in the Ten Commandments cases) are competing for that coveted (?) slot. The Supreme Court will have to review the partial-birth decision. And before it does we have on tap the pending parental-notification case from New Hampshire. The issue in each case is the same: Does the Constitution–oops! I mean: Do Roe and progeny–require a “health exception per se,” as the lower courts are calling it? The right answer should be “no.” But the Supreme Court does not often give the right answer when it comes to abortion.

One thing conservatives might ask about now is whether the United States is going to file a friend-of-the-court brief in the New Hampshire case arguing against the per se health exception. And the man making that call would seem to be. . . the attorney general of the United States Al Gonzales.



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