With enormous majorities in the House and Senate and the most radical pro-abortion rights president in history in the White House, some in the pro-life movement despair of any progress for many years to come. But as Jill Hamers, writing in the June 2009 Boston University Law Review this past spring pointed out, there is reason to believe the Roberts Court will be much slower than in the past to block state statutes protecting the unborn. Her conclusion:
Over the past three-and-a-half decades, organizations such as Planned Parenthood played a major role in sustaining facial challenges to state abortion regulations before states even had a chance to implement them. Courts reliedheavily on the discretion of abortion doctors to determine what procedures were safest for women. Now, courts will entertain challenges to abortion regulations only in discrete cases. A doctor will have to show not just that a faction of the medical community believes one procedure is generally safer than another, but that in specific instances the existence a particular medical condition requires that the doctor perform a partial-birth abortion for a well defined class of women whose health is otherwise in danger. Without this showing, and in the face of scientific and medical uncertainty, state legislature will have discretion to regulate abortion procedures occurring at these late stages of pregnancy.
While future advances in scientific and medical technology will eventually shed more light on prenatal life and the effects of abortion on women, for now the Court must grapple with these issues in the dark. Under these circumstances, it “would indeed be undesirable for [the] Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive litigation.” The Gonzales Court is right to retreat from premature decisions of constitutional questions and instead exercise its limited jurisdictional power to “adjudge the legal rights of litigants in actual controversies.” Such are the demands of as-applied challenges:”the basic building blocks of constitutional adjudication.”