Replies

Planned Parenthood of Central New Jersey v. Farmer, et. al., 220 F.3d 127 (3d Cir. 2000).
During the late 1990’s a number of different courts across the nation considered the constitutionality of state laws purporting to limit the constitutionally intact dilation and extraction procedures sometimes referred to by opponents as “partial birth abortion.” The Third Circuit considered such a law in New Jersey. After the Third Circuit opinion was drafted, but before it was issued, the Supreme Court issued its opinion in Stenberg v. Carhart (530 U.S. 914 (2000)) which struck down a late term abortion law very similar to the one at issue in New Jersey. As the Third Circuit had already determined that the law was unconstitutionally vague, they issued their opinion written by Judge Maryanne Trump Barry unchanged except to note, in the beginning of the opinion, the intervening opinion of the U.S. Supreme Court. The opinion is a lengthy discussion of the constitutional inadequacies of the New Jersey statute.

Alito wrote separately to state that he believed that the whole majority opinion was “never necessary and is now obsolete.” 220 F.3d at 152. He would have preferred that the court simply hold that the New Jersey statute was unconstitutional because it did not contain an exception for situations in which the health of the mother was endangered as required by the Supreme Court in Stenberg v. Carhart and because the statute would have applied to more than just intact dilation and extraction.

http://media.pfaw.org/stc/AlitoPreliminary.pdf