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Wednesday, February 15, 2006 

Administration Calls for Court to Reexamine PBA

The Bush Administration has urged the Court to hear the Gonzales v Carhart case. The Administration wants the Court to rule on the constitutionality of the federal ban on partial-birth abortions. The last time that a PBA ban was before the Court in Stenberg v Carhart, the ban was struck down on a 5-4 vote with Justice O'Connor joining the four liberals.

I think that the Administration is pushing for this because they sense a win. If Chief Justice Roberts votes like former Chief Justice Rehnquist and Justice Alito votes the other way than O'Connor did, there are five votes to uphold the ban. Even Justice Kennedy, who spends a lot of time sitting on the legal fence, is strongly in favor of upholding the ban. He wrote a blistering dissent in Stenberg, arguing that the ban works within the Casey framework.

In the event that happens, I'm interested in seeing what the opinions look like. Justices Scalia and Thomas are never bashful about saying that they want Roe overturned. Obviously, no majority opinion joined by Justice Kennedy will say such a thing. Will there be concurring opinions and what will they say? Will Scalia or Thomas write one, reaffirming their commitment to overturning Roe? If they do, will Roberts or Alito join it?

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