Legislative fact-finding is at issue; Justice Kennedy will be pivotal figure
In weighing the constitutionality of a federal law, the U.S. Supreme Court sometimes gives deference to congressional findings of fact. How will it view the critical finding at the heart of its latest abortion challenge?
The justices this week will hear arguments in two cases testing the constitutionality of the federal Partial-Birth Abortion Act of 2003. Gonzales v. Carhart, No. 05-380; Gonzales v. Planned Parenthood, No. 05-1382. Partial-birth abortion is a term used for an abortion procedure, intact dilation and extraction, infrequently used in second-trimester pregnancies.
Although the high court's abortion precedents and the future of a woman's right to choose abortion will dominate discussions, the cases also are very much about separation of powers and the roles of the legislative and judicial branches in making and interpreting laws, say scholars on both sides.
"Our concern is [that] the Court's dislike of Roe v. Wade will drive the amount of deference it's willing to give to Congress," said Mark Moller, senior fellow in constitutional studies at the Cato Institute, which filed an amicus brief on the issue. "We think this is a much larger issue that goes far beyond Roe. It's about who gets to decide what the law is."