Who needs precedent, anyway?

Last week, the Supreme Court decided a case entitled Gonzales v. Carhart which posed a challenge to the Partial Birth Abortion Ban Act of 2003. As you may have heard, the ban was upheld, despite the mountain of precedent that suggested that the ban was unconstitutional.

Both Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and Stenberg v. Carhart (2000) (a case that overturned a Nebraska law banning "partial birth abortion") make explicitly clear that abortion laws must provide a health exception. (I ignore Roe here because Casey effectively gutted it, making Casey the go-to abortion precedent nowadays.) In other words, if the woman's health would be threatened by not getting a certain type of abortion, that method must be allowed in those cases. This was clear precedent.

Justice Kennedy, in Gonzales v. Carhart case, ignores this precedent. Indeed, the PBABA only provided an exception if the woman's life would be in danger, but not if her health would be in danger. So, if, for instance, she would go blind if she could not get a "partial birth abortion," the law would, in effect, make her go blind. Of course, Congress asserts that there is never a case when "partial birth abortions" are the safest method or when the woman's health will be threatened if she cannot get such a procedure. You know who disagrees, though? The American College of Obstetricians and Gynecologists. Hmm. Who knows more about Obstetrics and Gynecology? The American College of Obstetricians and Gynecologists, or politicians (mostly Republicans - the House vote was 281-142; the Senate vote was 64-34)?

The Court, being the "strict constructionists" and "judicial restraintists" they are, decided to leave fact finding matters to Congress.

It is typically referred to as restraint when the Court defers to the elected branches of government, but it is not restraint when doing so requires ignoring standing precedent for no legitimate reason. Indeed, the only reason for ignoring the Casey and Stenberg precedents was that Samuel Alito had replaced Sandra Day O'Connor.

I love the smell of politics wafting out of the Supreme Court, don't you?