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August 20, 2006

Fact-finding in Constitutional Cases

On November 8, 2006, the United States Supreme Court will hear argument in the case of Carhart v. Gonzales, the so-called "partial birth abortion" case.  Although the subject matter of the case concerns a highly contentious issue, the legal issue presented should be somewhat less controversial.  Indeed, the underlying matter presented is a subject of disputed scientific opinion.  In short, the basic scientific issue concerns whether a health exception is necessary to a ban on partial birth abortions.  In the challenged law, Congress explicitly found, based on its assessment of the science (after extensive hearings), that a health exception was not necessary.  The question for the Court to decide this term is whether federal courts owe deference to such congressional findings of scientific fact. [The Question Presented can be found here: Download QuestPresSCT.pdf ].

The Justice Department's brief argues that courts owe Congress deference under these circumstances, despite the fact that the resolution of the issue impacts a basic constitutional right.  Indeed, the Justice Department asserts the following remarkable proposition: “[t]here is . . . no principled basis for holding that the degree of deference owed to congressional findings depends on the level of scrutiny applicable to the right at issue.”  In effect, then, Congress (and presumably any State legislature) could revisit constitutional precedents and reconsider the factual premises for those decisions.  Under the government's reasoning, the courts would owe deference to Congressional "findings" that segregation does not negatively impact black schoolchildren (overturning Brown v. Board of Education), or that viability occurs in the sixteenth week of a pregnancy (overturning Roe v. Wade).  The government's position is astounding and wrong.  Among many briefs submitted to the Court demonstrating why this is so, see Download SupremeCourtFINAL.pdf (page numbers may vary from the brief filed, because of formatting differences).
-- DLF

August 20, 2006 | Permalink

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