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WASHINGTON-In weighing the constitutionality of a federal law, the U.S. Supreme Court sometimes gives deference to congressional findings of fact. How will it view the critical finding at the heart of its latest abortion challenge? The justices this week will hear arguments in two cases testing the constitutionality of the federal “Partial-Birth Abortion Act of 2003.” Gonzales v. Carhart, No. 05-380; Gonzales v. Planned Parenthood, No. 05-1382. Partial-birth abortion is a term used for an abortion procedure, intact dilation and extraction, infrequently used in second-trimester pregnancies. Although the high court’s abortion precedents and the future of a woman’s right to choose abortion will dominate discussions, the cases also are very much about separation of powers and the roles of the legislative and judicial branches in making and interpreting laws, say scholars on both sides. “Our concern is [that] the court’s dislike of Roe v. Wade will drive the amount of deference it’s willing to give to Congress,” said Mark Moller, senior fellow in constitutional studies at the Cato Institute, which filed an amicus brief on the issue. “We think this is a much larger issue that goes far beyond Roe. It’s about who gets to decide what the law is.” The court’s approach to deference in these cases, he added, can affect “a whole array of different rights.” In enacting the 2003 law, Congress made explicit findings in the statute that partial-birth abortion “is never medically indicated to preserve the health of the mother.” A health exception to abortion restrictions has been central to the court’s abortion jurisprudence since the landmark Roe v. Wade. The lack of such an exception was a key basis for a 5-4 majority’s decision to strike down a Nebraska partial-birth abortion law, very similar to the federal law, just six years ago. Stenberg v. Carhart, 530 U.S. 914. In the 2003 law, Congress criticizes Stenberg and the findings of the trial judge that gave rise to the Stenberg high court case. The federal lawmakers call for a “high degree” of deference to their own findings, a call echoed by the Bush administration and its supporters in briefs defending the federal law. Neutral fact-finding? But opponents contend that that type of deference is not due because Congress did not engage in neutral fact-finding. A fundamental right, requiring heightened court scrutiny and independent review of congressional findings, is at issue, and two district judges, in extensive trials in the two cases, made findings contrary to those of Congress. The heart of the congressional fact-finding process-and the reason Congress receives its greatest deference on economic or sociological facts-is its ability to use a diverse array of means to collect and analyze information, said Charles Tiefer of the University of Baltimore School of Law, a former solicitor to the U.S. House of Representatives. However, he added, “Where the issue is a matter of weighing social values against civil liberties, Congress may or may not have a good feel for the viewpoint of the voting population, but it doesn’t have some superior method of somehow factually establishing where the balance point is.” The high court, with some ups and downs, gave considerable deference to congressional findings from the late 1930s to the mid-1990s and the advance of the Rehnquist Court’s federalism movement, said Tiefer and others. In the last decade, a divided court struck down a number of applications of federal laws to the states, often because of a lack of congressional findings or despite extensive congressional findings. Some lawmakers have voiced considerable unhappiness with the court’s “lack of respect,” most recently in the confirmation hearings for Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. While scholars agree that it’s hard to find a consistent approach across the justices’ rulings, Neal Devins of the College of William and Mary Marshall-Whythe School of Law suggests that where the court generally applies a rational-basis standard of review to a law affecting a right or classification, the court gives extreme deference to Congress. “The whole theory of rational-basis review is essentially these are matters the legislative process will self-correct if mistakes were made,” said Devins, who has studied the findings issue. “But then, there are fundamental rights cases, like cases involving abortion, where the court says the nature of the right or the classification involved is such we can’t defer to the government.” The government argues that a series of First Amendment rulings by the high court “confirm that the degree of deference owed to congressional findings does not turn on the right at issue or the applicable level of scrutiny.” That position is “astounding and ridiculous,” said David Faigman of the University of California Hastings College of the Law, who, with other scholars, filed an amicus brief on the findings issue on behalf of the law’s opponents. When legislation is subject to heightened scrutiny because it burdens a basic right, he said, the court has always made an independent review of factual findings. The government’s position-deference in all cases-would permit legislative bodies to effectively overrule, through the guise of “fact-finding,” the court’s most critical decisions, he added, thereby undermining the court’s pre-eminent role in constitutional interpretation mandated by Marbury v. Madison, 5 U.S. 137 (1803). Ultimately, all agree, the pivotal figure is Justice Anthony M. Kennedy, who dissented in Stenberg but holds a very strong view of the Supreme Court’s role in the Constitution’s scheme. “He could view what Congress did as an affront to the court,” said Devins. “This is where the rubber meets the road for Kennedy-to find out which is the bigger pull-the disapproval of Stenberg pull or the judicial supremacy pull.”

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