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7/19/2005

Carhart

NRO's Hadley Arkes:
For the conservatives, the most consequential shift would come in flipping the decision on Stenberg v. Carhart (2000) and upholding the federal ban on partial-birth abortion. Either one of the Ediths would guarantee that outcome; and in my own reckoning, such a decision on partial-birth abortion would virtually bring to an end the Roe v. Wade regime. For it would send up a signal to legislatures throughout the country that the Court was now open for business in sustaining many varieties of restriction on abortion. They might be measures to require the method of abortion most likely to preserve the life of the child, or measures actually to bar abortions late in pregnancy, or abortions ordered up because of the likely disabilities or afflictions of the child (e.g., Down’s syndrome, spina bifida). Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much.
Of course, Arkes thinks this is a good thing, but his analysis is probably correct nonetheless. Overturning Stenberg v. Carhart would have a disastrous effect on abortion rights, and would present a very real danger to women - it would be illegal for a woman to obtain a late-term abortion even if failing to do so would jeopardize her health.

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