Carhart: What difference a health exception?

[MARK STEIN]

Though the partial-birth statute contains no health exception, the Constitution contains a health exception, as affirmed in Carhart.  A doctor can raise the health exception in defense to prosecution.  Similarly, a doctor who thinks that intact D & E is necessary to save the life of the pregnant woman might have to assert the statutory life exception in defense to a prosecution.

The statute says that a doctor asserting the life exception can get a 30-day trial delay to seek the opinion of the state medical board as to whether it really was necessary, and the findings of the board are admissible, but presumably the same could be done to support a health exception.

Is there a difference in the burden of proof?  In whether the issue can go to a jury?

Incidentally, I don't see how the procedure can sometimes be necessary for life (greater damage), but never for health (lesser damage).   It would make more sense to suppose that it is sometimes necessary for  health, but never necessary for life.

Mark 
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