Like Ed Whelan, I recommend Walter Weber’s essay here at NRO today on the Gonzales v. Carhart ruling. I have just one quibble, where Mr. Weber is more certain about something than I would be. He suggests that a sea change has occurred in abortion jurisprudence, with Justice Kennedy’s opinion placing the Court on record against future “facial” challenges to abortion statutes, leaving only “as applied” challenges available to plaintiffs claiming infringement of their rights. Weber writes as follows (interpolation in brackets his, not mine): that “the Court said such ‘facial’ challenges ‘should not [be] entertained in the first instance.’ Rather, an ‘as-applied challenge’ is the ‘proper means’ to address concerns about particular circumstances that may threaten harm to some women.”

But Mr. Weber’s “[be]” is a change of verb tense that makes a difference. Here is Kennedy in the original (but with my italics):

The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.

I wish Weber were right about the sweeping elimination of all future facial challenges to abortion laws. But looking at Kennedy’s words for myself, I don’t think I can say that. In this case, regarding this kind of statute, the facial challenge “should not have been entertained.” This does not foreclose all such attacks in future on different kinds of abortion statutes in different circumstances. When they might be appropriate is admittedly hard to say. But they are not, I think, out of the question entirely.