Unlike Congress, the appeals court that affirmed the necessity of this procedure didn't purport to close the question. It conceded,
This is not to say, however, that because the Supreme Court concluded "substantial medical authority" supported the need for a health exception in 2000, legislatures are forever constitutionally barred from enacting partial-birth abortion bans. Rather, the "substantial medical authority" test allows for the possibility that the evidentiary support underlying the need for a health exception might be reevaluated under appropriate circumstances. Medical technology and knowledge is constantly advancing, and it remains theoretically possible that at some point (either through an advance in knowledge or the development of new techniques, for example), the procedures prohibited by the Act will be rendered obsolete. Should that day ever come, legislatures might then be able to rely on this new evidence to prohibit partial-birth abortions without providing a health exception.
That's the kind of open-minded caution you need to adjudicate complex medical questions. And that, not life or choice, is the crucial question in the partial-birth abortion case. Which party in the dispute has more expertise? Which takes more care? Which shows more humility? By any of those standards, the doctors and judges put the politicians to shame.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.