The Supreme Court's Split Decision to Uphold the Federal "Partial-Birth Abortion" Ban: Why, Despite the Court's Disclaimers, It Will Be Hugely Influential

By EDWARD LAZARUS

Thursday, Apr. 26, 2007

Last week's Supreme Court 5-4 decision in Gonzales v. Carhart upholding the federal criminal ban on the late-term abortion procedure often referred to as "partial-birth abortion" deserves analysis on many levels.

On the surface, Justice Anthony Kennedy's majority opinion claims to be exceedingly narrow. It purports merely to honor and apply the Court's recent precedents, including Planned Parenthood v. Casey, the landmark 1992 that re-affirmed the core holding of Roe v. Wade creating a constitutional right to obtain an abortion.

Moreover, Kennedy's opinion goes out of its way to emphasize that it is merely upholding the partial-birth ban against a "facial" challenge - that is, a challenge seeking to strike down the law regardless of circumstance, on the ground that it is unconstitutional in the lion's share of cases in which it could possibly be applied. The ruling thus leaves open the possibility that the ban might prove unconstitutional in individual cases - and even seems to invite such "as applied" lawsuits.

But regardless of its disclaimers, the opinion's import - for both Court and country -- is oceanic, as I will explain.

The Court's Successful 1992 Attempt To Impose Peace in the Midst of the Abortion Wars

In the 1992 Casey decision, the Court tried to impose a peace over the abortion wars by creating a legal compromise reflecting the views of the vast majority of Americans - namely, that abortion should be legal but reasonably regulated.

To this end, on one hand, the Court gave states somewhat greater leeway to regulate abortion, as long as such regulation does not imperil the health or life of the woman. On the other hand, the Court emphatically re-affirmed the right of women to obtain abortions, as first recognized in Roe.

The decision was a 5-4 split, with Justice Stevens, Blackmun, O'Connor, Kennedy, and Souter in the majority, and then-Chief Justice Rehnquist and Justices Scalia, Thomas, and White in the minority. Yet for fifteen years, the Court's attempt at peacekeeping in Casey largely succeeded. By mirroring the views of most Americans, and by making clear that further attacks on Roe would not prevail, Casey discouraged new envelope-pushing anti-abortion legislation and gave the Court itself a relative breather from an issue that had created corrosive divisions within the institution (the Court decided only one abortion case between 1992 and 2006).

The Carhart Decision: Destroying the Peace Casey Imposed, and Affecting the 2008 Election

With last week's decision in Carhart, the fragile peace Casey established lies in ruins. By approving a ban on partial birth abortion, notwithstanding a possible threat to the health of the woman, and by doing so in an opinion that is remarkably solicitous to the views of anti-abortion activists, the Court guaranteed a new flow of state statutes regulating abortion from an anti-abortion perspective, and thus also a new flow of the judicial challenges that inevitably follow their enactment.

Just as important, by leaving the impression that the future of Roe is again in play (and thus raising the stakes for the 2008 presidential election), the Court in Carhart has restored the primacy of abortion as political issue - and, thereby, added yet more corrosive acid to our poisoned political culture.

What Interest Was Worth the Cost of Destroying the Balance Roe and Casey Struck?

In light of these consequences, it is fair to ask: to what end? What interest was so importantly at stake in Carhart that the Court would re-open our partially-closed wounds?

In past abortion decisions, whichever way the Court came out, the answer to these questions was pretty clear. But the Carhart decision, in contrast, does not materially advance any of the competing interests usually identified in abortion cases. Indeed it seems to accomplish little, except to put the judiciary in the middle of a terribly divisive and now newly-energized debate. That is most unfortunate.

Going back to 1973, Justice Harry Blackmun's original opinion in Roe recognized four interests that needed to be reconciled in abortion cases. On the "pro-choice" side, there was, first, the interest of the doctors who were threatened with criminal prosecutions under most abortion bans and, second, the interests of the women seeking to terminate their pregnancies. On the "pro-life" side, there was, first, the interest of the states in regulating abortion, both to ensure safety and to protect the state's interest in potential life and, second, the interest of the fetus itself in maturing into personhood.

The original trimester system that Blackmun created sought to balance all these interests by (at the risk of oversimplification) largely precluding abortion regulation in the first trimester; allowing health and safety regulation in the second trimester; and allowing abortion bans (except where the health or life of the mother was in jeopardy) in the last trimester. The closer the fetus got to personhood, in other words, the more regulation - up to and including a ban - was allowed. Moreover, the pregnant woman's health and safety were always kept in mind, and always provided a justification for a legal abortion.

From the outset, Blackmun's balancing was assailed by friends and foes alike. Supporters of the result complained that the opinion, however welcome, was obsessively focused on the rights of doctors to practice their profession, rather than on the rights of women to control their bodies and their destinies.

Meanwhile, opponents complained that the Constitution gave the Court no warrant to second-guess the judgment of states, and that the opinion overrode the view, deeply held in some quarters, that life begins at conception and cannot be legally extinguished thereafter.

In the intervening 34 years, the Court has frequently revisited and revised the balance that Roe struck. Over time, the rights of doctors receded into the background, as defenders of Roe gradually reoriented the focus of abortion rights towards pregnant women. This gradual shift culminated in the decision in Casey, where the Court emphasized that the Constitution protects a woman's right to obtain an abortion because that right is essential to the ability of women "to participate equally in the economic and social life of the Nation."

At the same time, the rights of the fetus and the regulatory prerogatives of states received greater solicitude, as the Court, within limits, permitted more and more regulation designed to protect fetal life. This shift, too, was embodied and foreshadowed in Casey -- where the Court scrapped Roe's trimester framework and, overruling two of its own precedents, opened the door to greater regulation aimed at limiting abortions. After Casey, Justice O'Connor's suggested "undue burden" test was taken by many as the best benchmark for regulation, and thus rather than looking to trimesters, courts tended instead to look to how much a given regulation burdened a woman's right to privacy, and hence her right to legal abortion.

Carhart's Folly: Disregarding Women's Interests Without Saving a Single Fetus

So where does Kennedy's Carhart opinion fall in this continuum? It really doesn't fall anywhere at all. To a remarkable degree, the whole opinion is an abstraction that disregards women, doctors and even the judgment of legislators -- yet does not spare a single fetus from abortion.

As Justice Ruth Bader Ginsburg writes in her incisive dissent, the majority opinion looks right past women. The ruling scarcely mentions a woman's constitutional right to terminate a pregnancy, or what has always previously been recognized as a necessary corollary -- a woman's right to make this often tragic choice free of fear that the state will put her health at risk through medical regulation.

Instead, to the extent Kennedy's opinion focuses on women at all, it is to accuse them of false consciousness - that is, an inability to make a wise choice about abortion on their own behalf. So it is that, to a degree, Kennedy justifies the ban on partial birth abortion by invoking the dubious non-sequitur that many women later come to regret choosing abortion (not that a ban on the partial birth procedure would affect this alleged truth one whit).

Kennedy is no more solicitous of doctors. He completely sets aside the unanimous consensus of the relevant mainstream medical organizations that banning the partial birth procedures will inevitably increase the health risks to women of undergoing late-term abortions. Instead, Kennedy discovers medical "uncertainty" in light of the fact that some doctors opposed to abortion have ventured a contrary view.

Kennedy reaches this conclusion, moreover, even though three separate district courts, after three separate lengthy trials, each concluded - just as the mainstream medical groups opined - that the ban of the partial birth procedure indeed does pose health risks for women.

At the same time, Kennedy's opinion is also significantly dismissive of the legislative findings Congress ginned up to support its partial birth ban. As Kennedy has no choice but to realize (and as the three trials exposed), a number of the congressional findings had little or no basis in fact,

Briefly, then, Kennedy's opinion makes short shrift of women, doctors, lower courts, and legislators alike. And it engages in this wholesale disregard of the interests of all the relevant persons and institutions in order to save an abortion regulation that by its own terms will not save a single fetus from extinction. As Kennedy's opinion discusses at length, under the ban he has upheld, doctors remain free to use several different procedures (ones that either kill or dismember the fetus in the womb, not outside it) in order to reach the same ends - with the only consequence being a greater risk of damage to the women involved.

As if to ameliorate this perverse result, Kennedy says that new challenges to the law can be brought on a case-by-case basis if real danger to a woman's health can be shown. Leaving aside the vexing question of how such challenges would work in practice, the consequence of this approach is to set up the courts - and ultimately the Supreme Court -- as an ad hoc medical board to determine the relative safety of abortion procedures, one case at a time. It seems very unlikely that the courts will be able to do this well enough, or quickly enough. And it seems completely impossible that they will be able to do this better than individual doctors who are already familiar with the procedures, who have a full command of individual women's medical histories and health issues, and who can act as quickly as needed.

This is the making of abortion law by water torture - and all of us, but most especially pregnant women agonizing over what to do, will feel the pain of it.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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