Partial-Birth Abortion and the Perils of Constitutional Common Law‪.‬

INTRODUCTION Gonzales v. Carhart (1) continues the Supreme Court's haphazard development of its abortion jurisprudence--and neatly illustrates everything that has gone awry in modern constitutional law. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, concluded that the federal Partial-Birth Abortion Ban Act of 2003 (PBABA) (2) did not, on its face, unduly burden a woman's constitutional right to obtain an abortion. (3) Justices Thomas and Scalia would have upheld the statute simply because "the Court's abortion jurisprudence ... has no basis in the Constitution." (4) Justice Ginsburg and three other dissenters argued that the PBABA was indistinguishable from a state law that the Court previously had struck down in Stenberg v. Carhart. (5) Meanwhile, all of the Justices simply assumed Congress had the power to enact the challenged legislation. (6)