Waiting for Fitzgerald

[Replaced_Texan]

Originally posted by Mmmm, Burger (C.J.)
Question: has any court held that partial birth abortion is unconstitutional in itself? As opposed to a holding that the statutes are either vague or overbroad (or both)?

And didn't casey uphold a parental consent provision, with a judicial bypass? Why is more needed?

Justice Bryer in Stenburg v. Carhart, 2000 regarding a Nebraska ban on partial birth abortions wrote the majority opinion:

The question before us is whether Nebraska's statute, making criminal the performance of a "partial birth abortion," violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and Roe v. Wade, 410 U. S. 113 (1973). We conclude that it does for at least two independent reasons. First, the law lacks any exception " `for the preservation of the ... health of the mother.' " Casey, 505 U. S., at 879 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). Second, it "imposes an undue burden on a woman's ability" to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself. Id., at 874.

The current litigation over the Partial Birth Abortion Act revolves around the "health of the mother" issue, and I've heard speculation that the provision was deliberately left out or weakened in order to ensure litigation.