Locally, it's been a slow week in constitutional law. However, that is not the case in Nebraska. In Carhart v. Gonzales, the Eighth Circuit held that the federal ban on partial birth abortions, 18 U.S.C. section 1531, is unconstitutional. In a nutshell, the court reasoned:
"[W]hen 'substantial medical authority' supports the medical necessity of a procedure in some instances, a health exception is constitutionally required. In effect, we believe when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women's health by including a health exception."
In so concluding, the court declined to address the government's argument that the court was required to defer to the congressional findings of fact that partial birth abortions were never medically necessary. It reasoned that doing so was not required because the question of the medical necessity of partial birth abortions was one of "legislative fact" which the Supreme Court has resolved contrary to the findings by Congress. To overcome that finding of legislative fact in the future, the government (or states) bear the burden of proving that the "relevant evidentiary circumstances (such as the presence of a newfound medical consensus or medical studies) have in fact changed over time."
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