Rick Hasen's web log
April 18, 2007
Today's Supreme Court Abortion Decision and the Upcoming Campaign Finance Argument in WRTL
Today the Supreme Court by a 5-4 vote upheld a facial challenge to the federal partial birth abortion ban.
Abortion issues are quite removed from campaign finance regulation, but in this case, there are two connections between the Carhart case and the Wisconsin Right to Life case that the Supreme Court will hear a week from today (I'll be attending the argument and blogging about it, as well as appearing on this CATO panel). These connections are aside from the obvious one that WRTL likely is very happy with today's ruling.
First, today's majority opinion by Justice Kennedy cited the Supreme Court's first WRTL per curiam decision on the distinction between facial and as-applied challenges:
- As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. [I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. United States v. Raines, 362 U. S. 17, 21 (1960) (internal quotation marks omitted). For this reason, [a]s-applied challenges are the basic building blocks of constitutional adjudication. Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).
The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Commn, 546 U. S. 410, 411412 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception. 18 U. S. C. s 1531(a) (2000 ed., Supp. IV).
This doesn't shed much light on how the Court will decide WRTL, but it does point out what the Court majority thinks is the proper purpose of as-applied challenges. I wonder if this statement will have an impact on facial challenges to voter id laws as well.
More significantly, the case shows that the new Roberts Court, despite claims of modesty, is not afraid to overturn precedent even if there are significant reliance interests involved. I've filed an amicus brief with Richard Briffault giving the Court a modest way to decide WRTL II, but I've also written that supporters of campaign finance regulation should be very afraid of this case specifically and of the Roberts' Courts approach to the campaign finance cases more generally. As Marty Lederman observes as well, Justice O'Connor's departure means cases like McConnell v. FEC are subject to being overruled---as early as this term.