Con Law exam ideas after *Carhart?*

[Lynne Henderson]

Dear colleagues:
        for several years, I had used the Partial Birth Abortion Act for 
  Con Law I exam questions, since it so obviously brought together 
strands from *Lopez/Morrison*, *Boerne*/*Garrett,* and SDP (and to some 
extent the whole federalism debate)
        I have finally read the opinions carefully and feel as if I can 
at least discuss the case here.  I'm still not clear why the  Kennedy 
opinion  just assumed Congress could pass, well, morals 
legislation--except I assume the majority saw the "jurisdictional hook" 
("in or affecting interstate commerce") and left Federalism concerns 
behind,.  (I understand why the respondents wouldn't want to get into 
Congressional power issues for all kinds of reasons--what if the Court 
had said section 5 gave Congress the power to regulate abortion under 
the due process clause?   And the Commerce power has its good and bad 
parts--though where the line should be drawn--but are we back to 
*Champion v. Ames?*)
	Given the Kennedy opinion, what's to prevent Congress from prohibiting 
all second trimester abortions or abortions on moral grounds, 
presumably if there were a life and maybe health exception?  Certainly 
I agree that if gruesomeness and inhumanity are the criteria, all D&E 
should be banned--how is it less inhumane to kill the fetus/baby in 
utero ?  What about the health risks of the equivalent of a C-section 
or a hysterectomy?  ?
	as a pro-choice person with a respect for pro-life concerns,  I am 
inclined to be more supportive of Justice thomas's and Justice Scalia's 
position that it should be left to the states after this . . .Or is it 
really limited by Justice Kennedy's honest revulsion about the 
procedure he voiced in his *Stenberg* dissent?  Eg, he seems to  thin 
kfor some (morally intuitive?) reason "first trimester" abortions are 
not as morally offensive/damaging to t the state's continuing interest 
in human life (are we back to trimesters?)  But how less respectful of 
human dignity and life is such a procedure (beyond the immediate Plan 
B, interuterine device,  or even RU 486 procedures)
	And, I have to say, I am deeply troubled by the disappearance of women 
as moral decision makers yet again (*Roe* not having much to say about 
women) on the basis of very shaky assertions about "post abortion 
syndrome"/psychological damage/failure to  want to know the full 
dimensions of abortion,   I'm sorry, but lots of studies demonstrate 
that we females are morally autonomous (see, eg. Carol gilligan's 
studies of decision to have or not have an abortion) and, as a rape 
survivor who has written I would do anything to avoid a pregnancy from 
rape, (see my essay on Finnis in Cleveland-Marshall L. Rev. symposium), 
  I am appalled at the loss once again of the lived realities of women 
so well spelled out in the NARAL brief in *Thornburgh* and the 
majority's acceptance that since a few/some women suffer grief/ 
depression (without more on how controlled any studies are, it is hard 
to unpack that assertion--surely some women regret it, but may have the 
regret and feelings of loss while still knowing it was the best choice 
in the circumstances;  but depression has many etiologies and is not 
necessarily tied only to one decision, etc.)
	 Because even before *Roe*, we had colleagues and students who had had 
abortions, and certainly the odds are that many since *Roe* have faced 
this decision or known people who did, I hope we can all be respectful 
of points of view in discussion this issue.
	          Sincerely
              Lynne