Commentary: Some consequences of Carhart II
on Apr 18, 2007 at 4:26 pm
In a decision that surely is on a par, historically, with Roe v. Wade, the Supreme Court’s 5-4 decision Wednesday upholding a nationwide ban on “partial-birth abortions” guarantees at least three coming battles in the ongoing culture war on abortion, and, in addition, ensures that the Court itself will continue to be affected by lingering resentments — inside and out — over what it has decided.
First, Gonzales v. Carhart (or Carhart II) guarantees that, on future Supreme Court nominations, where a nominee does or may stand on abortion rights will continue to be the dominant focus — of both sides in nomination fights. In other words, it will still be a litmus test, on both sides. That will surely keep the issue alive as a divider in politics in general.
Second, it guarantees that new lawsuits will spring up, perhaps in only a matter of days, to test whether anything remains legally and practically speaking of the constitutional right to abortion.
And, third, it guarantees that state legislators across the Nation will be actively at work finding ways to curb abortion rights earlier and earlier in pregnancy, perhaps from the moment of conception.
And those are just the guarantees in the realms of law and politics. In cultural terms, the decision means that any thought of reconciliation, or searching for common ground on the moral terrain of terminating pregnancy, is premature at best, and doomed at worst. Neither side has been given any reason not to dig in further on its firmly established view on access to abortion.
For the Court itself, the ruling is likely to be an abiding reminder that, when an issue that causes deep social fissures comes before the Justices, they will be as polarized as is the general public. Consensus, however eagerly desired or internally promoted, is not powerful enough to bring harmony when such issues confront the Justices. Just as Bush v. Gore remains — to a degree, at least — a festering irritant within the Court seven years later, Gonzales v. Carhart almost certainly will infect relations among the Justices for some time to come. Of course, the abortion question itself will be coming back to the Court, perhaps in increasing volume and intensity, but, even in other contexts, the Court’s work as a collegial institution may well suffer. Good will, in short, will be harder to come by. Justice Ruth Bader Ginsburg, who can be as accommodating as any member of the Court to differing views among her colleagues, has not been as angrily aroused before, and that may not be short-lived.
Among other factors contributing to this state of unease, the decision’s treatment of abortion precedents gives the impression that the work the Justices do — even on the most socially consequential questions — may not have any real enduring effect, if even one new Justice arrives or one has a change of mind. Stare decisis has been wounded, it seems, and with it the sense of doctrinal stability.
Moreover, the dispute between the majority and the dissent over a point that seems minor as a matter of law but looms large as a matter of emotion — whether some women who have abortions come to regret it — is a manifestation of a deep disagreement over what kind of legal materials will be summoned to justify outcomes in sensitive cases like abortion controversies. The majority opinion summons up the idea of regret (calling it an “unexceptionable” proposition) from a brief filed in the name of Sandra Cano, the Atlanta woman who was “Mary Doe” in Doe v. Bolton, the companion ruling to Roe v. Wade. Cano is a part of a movement that seeks to have Roe overruled on the basis of claims that medicine and science have changed so much since 1973 as to undercut the right to abortion. (Cano herself tried and failed to get the Court to reopen Roe just last October.)
While there is no early prospect that Roe v. Wade will be overturned, as long as the present Justices sit (Justice Anthony M. Kennedy clearly does not want to be the author of an opinion doing so, and thus there is no chance for five votes for that), the narrowing of that decision will be more fervently pursued now with the impetus of Gonzales v. Carhart. The fact that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., did not join in Justice Clarence Thomas’ separate opinion (joined by Justice Antonin Scalia) rejecting Roe v. Wade does not prove, by itself, that they are in any way sympathetic to that as a precedent, or that their votes would not be routinely available to support further abortion restrictions.
It is quite clear, from both the reasoning and language of Justice Kennedy’s opinion for the Court, that he developed it to read like a narrow, perhaps even cautious decision, going only so far as was necessary to settle the two consolidated cases, leaving precedents standing, and suggesting alternatives to protect women. But, on close examination, Gonzales v. Carhart on its own terms makes a substantial revision of the present law of abortion.
First, fetal viability — the point at which a fetus could survive outside a woman’s body — has lost most of its signficance as the entry point for significant government regulation of abortion procedure. This makes it more likely that regulation earlier in pregnancy will be more acceptable to the Court, because a government interest in fetal life from the moment of conception is now enhanced. (Kennedy saw that interest as the main legacy of the Court’s ruling in 1992 in Planned Parenthood v. Casey — the decision that rescued most of Roe v. Wade from incessant attack.)
Second, the notion that abortion restrictions must pass some more demanding test than mere rationality has been put into question, if not discarded outright.
Third, bans or regulations of abortion procedures do not have to include medical exceptions, if the Court can imagine some way for individual pregnant women facing medical threats to get into court quickly enough with a credible claim, probably as to herself alone. Thus, challenges by advocacy groups may now be quite unwelcome in court.
Fourth, expert medical testimony is likely to have less controlling effect in court cases over abortion restrictions, since the Court has declared its intention to find medical facts for itself. Even if the weight is heavily on one side of a medical debate, the Court appears prepared to accept that as sufficient disagreement to justify making its own diagnosis.
Fifth, no lower court is likely to be ready to accept any constitutional lawsuit challenging an abortion restriction simply as written — in other words, a facial challenge. Such challenges have been common throughout the history of abortion rights, and the Court has regularly made that an acceptable approach — until now.
Sixth, Congress has been allowed to become a major player in the regulation of the medicine of abortion. Its most energetic effort, the Partial-Birth Abortion Ban Act of 2003, is what survived constitutional challenge on Wednesday. And the Court, relying on a 1974 precedent that had to do with drug rehab as an alternative to time in prison (Marshall v. U.S.), has given a ringing endorsement to congressional prerogative in matters of medicine: “When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.” (With a Democratic majority now in Congress, anti-abortion legislation is not likely to have favorable near-term prospects, but surely there will be attempts to exploit the survival of the 2003 Act. It will be common fare on the legislative calendar.)
More than a third of a century after Roe was decided, and with no Justice then on the Court still living, a new generation of abortion jurisprudence has arrived.
