Title: S-3 Constitutional?
S-3, the “Partial Birth Abortion Act of 2003,” now an enrolled bill which President Bush has promised to sign, seems to me to raise some very interesting Congressional power questions.
The Congressional findings state that the Court’s conclusion in Stenberg v. Carhart that the state statute prohibiting a particular abortion procedure was unconstitutional because it did not contain an exception for health of the woman was incorrect, in part because the Court had to apply a “clearly erroneous” standard regarding the district court’s findings that the so-called partial birth abortion procedure was medically safe. The Congressional findings state that “a ban on partial birth abortion is not required to contain a ‘health’ exception because the facts indicate that a partial birth abortion is never necessary to preserve the health of a woman . . . .” Section 14 of the findings details this and other matters.
The findings further state that Congressional findings are entitled to great deference under Katzenbach v. Morgan. The findings do not refer to the more recent case of City of Boerne v. Flores (1997) which basically held that Congressional power under section 5 of the 14th A (presumably the basis of Congressional power in S3), must be “congruent and proportional,” and that Congress does not have the power to alter the meaning of the 14th A as it has been interpreted by the USSCT. (The statute at issue in City of Boerne was RFRA, in which Congress was motivated by displeasure at Dept of Human Resources of Oregon v. Smith (”the peyote case”)). And the findings do not refer to Morrison. Or to the cases involving the 14th A enforcement power as implicated by the 11th A such as Kimel and Garrett. In all of these cases, the Court decidedly did not accord Congressional findings “deference” and held all the statutory provisions in question unconstitutional (or unconstitutional as an attempted abrogation of state sovereignty under the 11th A).
While the Court deemed the FMLA constitutional last term in Hibbs, it seems the trend has been not to accord deference to Congressional findings. And it seems that S-3 is most analogous to City of Bourne. So, is it a constitutional exercise of Congressional power?
I am interested in any thoughts on this - - - or predictions. (S-3 can be found at http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c108ymPFaF::)
Ruthann Robson
Professor of Law
City University of New York (CUNY) School of Law
65-21 Main Street
Flushing, NY 11367
[EMAIL PROTECTED]
Phone: 718.340.4447
http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c108ymPFaF::
