Editor's note. TN&V is a two-way proposition. I need your insights to produce a better, more helpful daily column. Please write me at daveandrusko@hotmail.com.

"Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn."
      Justice Anthony Kennedy in his majority opinion in Gonzales v. Carhart

Justice Ruth Bader Ginsburg wrote the dissenting opinion in Gonzales v. Carhart on behalf of herself and Justices Souter, Stevens, and Breyer. I was not in the courtroom but according to the news accounts she was smoking.

As a continuation of the discussion begun yesterday, I'm addressing Ginsburg's contention that the court was "retreating from prior rulings," specifically, "that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health…" Justice Kennedy begged to differ. (You can read the entire opinion at  www.nrlc.org/abortion/pba/SCopinionGonzalesvCarhart.pdf

Kennedy responded in a number of interesting ways. He begins by setting the table--demonstrating both that the law is not unconstitutional vague and that it furthers legitimate governmental interests.

First, he wrote, the abortion "procedure" banned by the law [Kennedy called it "intact D&E") is not vague "on its face." An abortionist "of ordinary intelligence" is provided "a reasonable opportunity to know what is prohibited."

Second, what the law bans cannot be misread to ban other abortions that use the more common D&E "procedure." The idea that an abortionist may stumble into an abortion prohibited by the law is belied by the evidence that "supports the legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance."

Third, the law's "stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and reputation. In a word, the law does further "legitimate government interests."

But having said that, Kennedy asks, does the law have "the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where' necessary in appropriate medical judgment, for [the] preservation of the ….health of the mother'"? Looking at past precedents "assumed" to be controlling, Kennedy wrote, this would be the case if the law "subject[ed[ [women] to significant health risks." Let's see.

#1. Some witnesses said there was an advantage to using partial-birth abortions, while others "concluded that the alleged health advantages  were based on speculation without scientific studies to support them," Kennedy wrote. "There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women."

#2. In addition, the Court "has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." This is consistent with Casey, Kennedy wrote, "which confirms the State's interest in promoting respect for human life at all stages in pregnancy."

#3. Moreover, "the law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their stature above other physicians in the medical community." [Emphasis mine]

 #4. There are "other safe abortion procedures," Kennedy wrote, "that are considered to be safe alternatives."

#5. Finally, Stenberg (the 2000 decision which overturned Nebraska's law banning partial-birth abortions) has been "interpreted to leave no margin for error for legislatures to act in the face of medical uncertainty." But a "zero tolerance" policy would strike down "legitimate abortion regulations," like the one at issue, "if some part of the medical community were disinclined to follow the proscription." The Partial Birth Abortion Ban Act is not, Kennedy concluded, "invalid on its face."

I hope you had a chance to yesterday's Part One, and the many, many other TN&Vs which have addressed this historic decision.

I hope as well that you pass this edition along to family, friends, and colleagues.

It is crucially important that you help educate the wider public. Please send your comments and questions to Dave Andrusko at daveandrusko@hotmail.com