The Partial-Birth Abortion Ban Act, enacted by Congress in 2003, imposes criminal liability on physicians who perform the procedure of intact dilation and extraction, which is more commonly - and controversially - referred to as "partial-birth abortion." In Carhart, the Supreme Court held the Act does not impose an undue burden on women's right to abortion. Following the Court's decision, the extent to which the specter of criminal prosecution will influence, or dictate, physicians' decision-making remains unclear.

During the first panel, moderated by Professor Marsha Garrison of Brooklyn Law School, medical practitioners covered the Act's impact on medical practice. Dr. Gillian Dean, Associate Medical Director of Clinical Research and Training at Planned Parenthood of New York City, provided an overview of the context in which abortions are sought. Dr. Katharine J. O'Connell, Assistant Clinical Professor of OB/GYN at Columbia University Medical Center, discussed the different medical and surgical options available to terminate a pregnancy and expressed concern that the vague and undefined language used in the Act leaves practitioners uncertain about what procedures could subject them to criminal liability, thereby limiting women's options.

Dr. Eleanor Drey, Assistant Clinical Professor of OB/GYN and Reproductive Sciences at the University of California - San Francisco and Medical Director of the Women's Options Center at San Francisco General Hospital, noted that the Act has led to procedural changes, such as more extensive documentation and fewer observers being permitted in the operating room. She also cautioned that the lack of medical support behind Carhart's majority decision may encourage providers to act in ways that are not based on the best medical evidence available in order to shield themselves from the possibility of criminal prosecution. Rounding out the first panel, Carole Joffe, Professor of Sociology at the University of California - Davis, discussed how the Carhart Court appropriated various "talking points" from the contemporary anti-abortion movement, thereby further legitimating the cultural disdain for abortion providers in the United States.

The second panel, consisting of legal scholars, was moderated by Professor Nan D. Hunter of Brooklyn Law School and focused on the legal questions that have arisen as a result of Carhart. Talcott Camp, Deputy Director of the ACLU Reproductive Freedom Project, discussed the history of abortion-related decisions in the Court, focusing on Justice Kennedy's reasoning and the Court's treatment of the decision-making ability of women. Caitlin E. Borgmann, a professor at CUNY Law School, discussed the Court's approach to legislative fact finding, i.e., those facts regarding recurrent patterns of behavior on which social policy is based, and the role it has played in judicial decision-making in the abortion context.

Priscilla J. Smith, Visiting Fellow of the Information Society Project at Yale Law School and Past Director of the Domestic Legal Program for the Center for Reproductive Rights, who argued Carhart before the Court, discussed possible future directions for legal advocates of abortion rights, both in legal courts and in the court of public opinion.

Finally, Professor David D. Meyer, visiting BLS during the spring semester from the University of Illinois College of Law, spoke about the decision's implications for family law and privacy beyond the abortion context. He noted that an important question arising in the wake of this decision is whether the seemingly greater tolerance for state intervention signaled a general retreat from principles articulated in earlier cases involving family-related rights, or whether its implications are limited to cases involving abortion. Carhart may reflect only the beginning of the legal issues surrounding the Partial-Birth Abortion Ban Act: As Professor Meyer cautioned, "It would be a mistake to suppose that Carhart does not have broader implications."

By Jared Goodman '09

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