In this essay (registration required) today on The New Republic Online, Benjamin Wittes offers an analysis of the Court’s ruling in Gonzales v. Carhart that is along the same lines as my NRO essay of a week ago: namely, that its real significance lies in its treating facial challenges to abortion regulations much more like other facial challenges. Wittes, who describes himself as “favor[ing] abortion rights,” sensibly welcomes this development: “it stands to make abortion fights less binary,” and “there is much to be said for the Court’s not throwing out more law than it needs to.”
Contrary to one of the many false assertions in Dorothy Samuels’s confused New York Times essay, Wittes also explains (consistent with my point 7 here) that the Court’s approach “followed the path it sketched out” in Ayotte v. Planned Parenthood a year ago.
Twelve days after the Court’s ruling, Wittes’s piece is the first responsible and intelligent discussion of Gonzales v. Carhart that I’ve seen from someone who opposes the federal partial-birth ban. (I haven’t been reading everything, though, so perhaps I’ve missed something else.)