As applied challenges to the Partial-Birth Abortion Ban Act

Conkle, Daniel O. conkle at
Fri Apr 20 04:59:10 PDT 2007

This is a very interesting and important question, and I'd love to hear
responses from people who know more than I do about the intricacies of
justiciability in this context, but I've been assuming that Carhart or
other doctors who perform intact D & E could institute pre-enforcement,
as-applied challenges seeking particularized declaratory and injunctive
relief on the ground that they have in the past performed this procedure
to protect the health of women with specific sorts of medical conditions
(detailing these conditions, at least as general categories of medical
conditions; see Ginsburg's dissent at 10 for a couple of examples); that
they anticipate the need to perform it for medical reasons in the future
(perhaps in circumstances requiring prompt or immediate action, with no
time to seek judicial relief at that point); and that they fear
prosecution, etc.  Am I mistaken?

Dan Conkle 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail conkle at 
-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Patrick Wiseman
Sent: Thursday, April 19, 2007 10:05 PM
To: ConLawProf
Subject: As applied challenges to the Partial-Birth Abortion Ban Act


Surely the reason the Court has been historically hospitable to facial 
challenges to abortion statutes is that a pregnancy lasts about 9
and a law suit, however expedited, is likely to outlast the pregnancy. 
Abortion jurisprudence is sui generis, not only because pregnancy is 
special (involving a "potential life" in addition to the pregnant
actual life), but because it is short and capable of repetition.

How on earth will as-applied challenges to the federal statute work?  A 
doctor, about to perform a standard D&E, comes to the conclusion that an

intact D&E would be safer for the patient.  If he performs it, he's 
subject to prosecution, because the procedure is illegal unless his 
patient's _life_ (not health) is physically threatened.  Does he call
lawyer and ask her to file suit to get a declaration that _this_ intact 
D&E is legal?  Obviously not.  So he has to choose between performing
procedure which he believes is safer for his patient and risking 
prosecution.  He performs the procedure, gets prosecuted, and our 
as-applied challenge is launched.  Is that not absurd?

Patrick Wiseman
Professor of Law
GSU College of Law
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