When Gonzales v. Carhart ("Carhart I") was announced, reactions were anything but soft-spoken or ambivalent. Despite the outcry it inspired, the decision's effect on actual abortions performed will be minimal. In Carhart II, the Supreme Court reversed the holdings of the Eighth and Ninth Circuit Courts of Appeals and upheld the Partial Birth Abortion Act of 2003. The Act bars women from obtaining a partial-birth abortion, a procedure which accounts for only .17% of all abortions, or approximately 2,232 annually, in the United States. Further, the Act is unlikely to actually preclude these abortions-rather it will merely ensure that an alternate abortion procedure will be utilized. Carhart II’s real significance lies in the explanations and details of the majority opinion. Within the opinion, the Court rationalized and clarified, as well as clouded, previous jurisprudence on medical uncertainty, the appropriate standard of review, and the vagueness and overbreadth doctrines. This Note focuses on what Carhart II signals for future legal analysis in determining when an abortion law is facially invalid. Noting that the standard for facial review in abortion cases remained undecided, the Carhart II majority suggested two possible standards. The Court could apply the traditional rule that a law is facially invalid if "no set of circumstances exists under which the act would be valid." Alternatively, the Court could apply a standard which facially invalidates a law if it imposes an undue burden "in a large fraction of the cases in which [it] is relevant." However, instead of selecting a test, the Court followed the famous advice of Yogi Berra: "when you come to a fork in the road, take it." The Court determined a facial challenge to the Act failed either test, and therefore stated, "We need not resolve that debate."

This Note examines the resolution that the Court should adopt in the future. Part II provides background on the overbreadth doctrine, including a historical overview of the doctrine's application in its traditional context of the First Amendment. Further, Part II provides a brief review of abortion precedents with an emphasis on facial challenges and concludes with an analysis of the key holdings and rationalizations in Carhart I. In Part III, the Note analyzes the merits of the possible abortion overbreadth tests. Section A will analyze which test is superior, based on congruency with prior precedent and probable effects. Within this section, arguments for traditional overbreadth are considered and found to be unconvincing in the abortion context. This section also observes the inappropriate shift in power favoring the judicial branch that the overbreadth doctrine would cause within the abortion arena. This section ends with a discussion of the grave difficulty that would arise in applying a large-fraction test and the risk that such a test might tempt the Justices to adhere to their moral beliefs rather than the law. Finally, section B suggests which standard the Roberts Court would likely adopt if faced with such a decision, based on a review of the Justices' previous remarks and decisions.