Argument Wed., 11/8/06: Abortion — a host of knotty issues

By Lyle Denniston
on Nov 7, 2006 at 7:20 am

(NOTE: The audiotapes of the two arguments on Wednesday will be released for public broadcast shortly after each case is concluded – perhaps by 11:30 a.m. on the first and 12:30 p.m. on the second. There will be no telecasts. The written transcript of each is expected to be available on the Supreme Court’s website within about two hours after argument.)

In what is probably the most important abortion controversy to reach the Supreme Court since it salvaged most of Roe v. Wade in 1992, the Supreme Court on Wednesday devotes two hours of argument to the constitutionality of the federal law that – for the first time – sought to outlaw nationwide an abortion procedure. If the Court were faced only with the single question of whether Congress was able to fit that law into past abortion precedents, its task would be difficult enough.

But the cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) confront the Court with a lengthy list of potential knotty iissues — ranging all the way from parsing what the new law means, to defining the constitutional boundary between its authority and that of Congress, to considering whether to overrule Roe v. Wade itself. It is by no means clear that the Court will answer all of the questions, and it may not have to do so in order to decide the fate of the law – the Partial-Birth Abortion Ban Act of 2003. But, if the new members of the Court were to reveal themselves as deeply skeptical about, or even hostile to, what the Court has said before on abortion rights, the potential is there for a sweeping new declaration on the abortion controversy.

(It is probably not coincidental that the case was scheduled for argument after election day. The nation as a whole, and the opposing sides in the abortion wars, will be watching the outcome of a referendum Tuesday in South Dakota on a law that the state legislature enacted with the explicit aim of putting the future of Roe v. Wade to a test; first at the ballot box, ultimately in the courts. The Court no doubt was aware of that, and sensitive to it.)

Depending upon which side is describing the federal ban, it is merely a carefully limited prohibition on a rarely-used procedure affecting only a small number of women, or it is a sweeping, loosely-phrased ban that will criminalize procedures that are common in most abortions after 16 weeks of pregnancy, and could outlaw procedures used as early as 12 weeks.

In a sign of the importance the Bush Administration assigns to the controversy, the law has been vigorously defended by the Justice Department since the court challenges began soon after the ban was enacted. And, before the Justices, both cases will be argued for the government in defense of the 2003 law by the Solicitor General himself – Paul D. Clement. Arguing against him will be two seasoned advocates for abortion rights: Priscilla Smith of the Center for Reproductive Rights in New York (in Carhart, the Eighth Circuit case), and Eve C. Gartner of Planned Parenthood Federation of America in New York (in the other case, from the Ninth Circuit).

In both cases, the law was found unconstitutional by the lower courts. The Carhart case has drawn the heaviest briefing, including 23 amicus briefs in favor of the federal ban and ten opposed to it. The Planned Parenthood case has drawn 13 amicus briefs supporting the ban and 12 opposed. (Some of the amici briefs overlap the two cases and some are duplicated.)

The Eighth Circuit case is a sequel to the Court’s 2000 decision in Stenberg v. Carhart, a ruling that struck down a Nebraska state law against “partial-birth abortion.” Congress passed the federal ban three years later (after failing twice because of vetoes by President Bill Clinton), with some of its sponsors unabashedly telling the Court that its authority was being challenged directly.

The new Carhart case is up first on Wednesday, and it will draw the Court immediately back to the 2000 ruling. But what is not likely to be mentioned – critical though it is – was the voting pattern in 2000. It was 5-4. One of the five is no longer on the Court: now-retired Justice Sandra Day O’Connor. (The late Chief Justice William H. Rehnquist was one of the dissenters.)

Unless Justice Anthony M. Kennedy, a fervent dissenter in 2000, who complained about the majority’s inability to see the moral dimensions of the “partial-birth” procedure, is to switch sides this time, the federal ban may survive unless either Chief Justice John G. Roberts, Jr., or Justice Samuel A. Alito, Jr., helps to make a fifth vote to follow Stenberg’s lead. Going into the Wednesday hearing, that seems like a long shot.

But opponents of the federal ban have not written off Kennedy. Indeed, a pair of their key points – first, about the virtue of following precedent (stare decisis) and, second, about the Court’s need to protect its constitutional decisions from simple legislative overruling by Congress – are issues on which Kennedy has sometimes been sympathetic. Indeed, he was one of the three Justices who worked out the compromise in 1992 (Casey v. Planned Parenthood) to reaffirm the basic abortion right declared in Roe v. Wade. And it was his opinion for the majority in City of Boerne v. Flores in 1997 that bluntly told Congress it could not overturn a constitutional ruling by a mere statute.

The two sides have energetically engaged each other on the question of how much deference the Court owes to Congress, when it finds facts. At the center of this debate is the meaning and scope of a 1997 decision – also written by Justice Kennedy – on the deference question, Turner Broadcasting v. Federal Communications Commission.

Some of the amici favoring the partial-birth abortion law fervently urge the Court to overrule Roe, Casey and Stenberg. That argument is made by, among others, the Foundation for Moral Law, Inc., in a brief written by the ousted chief justice of Alabama, Roy S. Moore. But the Justice Department does not take up that cause. In fact, the government’s briefs in the two cases argue that the Court need not overturn Stenberg in order to uphold the new law, arguing that Congress simply fixed the constitutional flaws that the Court had found in the Nebraska law, and that the two laws are substantially different. The government, though, suggests that, if that theory does not prevail, Stenberg should be overruled to make way for the federal ban.

Much of Wednesday’s two hours may be devoted to medical, rather than legal, arguments. That is because Stenberg struck down the Nebraska law partly because it did not provide a medical exception to the ban imposed by the state. Congress answered that by finding that there was never a medical necessity for a partial-birth abortion. Between the two positions, there is a host of opposing medical argument. Thus, the Court may find itself having to choose up sides between dueling professional briefs.

There also is a good deal of argument, among amici, on the moral questions surrounding the ban. Some groups contend Congress is trying to force a “moral consensus” on the nation, while others contend that Congress simply opted for a ban on the most immoral method yet devised for ending fetal life. Even those arguments seem tailored, at least in part, for Justice Kennedy: the dissenter partly on moral grounds in 2000, and the author of the personal autonomy/gay autonomy decision in Lawrence v. Texas in 2003.

There is a renewal of the continuing argument in each abortion case the Court hears: what is the standard for deciding the constitutionality of an abortion restriction – is such a law invalid if it would impede abortion rights for a number of women, or does it fall only if could never be applied validly to anyone?

And, finally, there is an argument over whether, if the Court strikes down the federal ban, the law must be blocked in its entirety, or whether a narrower limit on enforcement could be fashioned.