Or possibly third thoughts. It’s time for the “let’s look beyond the immediate decision” views on Gonzales v. Carhart, the Supreme Court’s April 18 decision upholding the ban on “partial-birth” abortions. In Legal Times this week, Evan Schultz parses one paragraph in the concurring opinion by Justice Clarence Thomas to find some evidence that Thomas is growing uneasy with, specifically, federal abortion restrictions. Not uneasy enough to vote against them yet. And not at all uneasy with state abortion restrictions. But between the two, there’s room for maneuver.
Meanwhile in The New Republic, Benjamin Wittes looks deeper into a paragraph in Justice Anthony Kennedy’s majority opinion [registration required]. Wittes finds evidence that the high court means to discourage all future facial challenges to abortion restrictions—which, he notes, is good news for abortion opponents. But by shifting the legal contest in the direction of as-applied challenges, the Court could render the abortion debate “less binary.” And that, we venture, might just bring the debate more in line with the thinking of most Americans.