Amici are religious organizations, religiously affiliated organizations, and individual clergy and theologians dedicated to preserving religious freedom for all persons and, within this context, to ensuring that abortion laws protect a woman's right to act according to her religious beliefs and conscience in this most private, personal decision.
-- Amici Brief of the Religious Coalition for Reproductive Choice, et al.
The new abortion ruling, GONZALES v. CARHART, has naturally received much commentary as my quick reference to it earlier suggested. The ruling is not just about the first time a federal (state to, I believe) law against a single procedure was upheld, truly symbolizing the way into a new Court. (Ironically, Justice O'Connor's last opinion was an abortion case, one that allowed a narrow result, delaying the issue) It has more troubling implications overall.
Let's say to begin with that the immediate holding was not too surprising. Justice Kennedy, who joined the four justice plurality in Webster that would have allowed a weak standard of scrutiny for abortion regulations before joining the plurality in Casey, wrote a strong and emotional dissent when a broader (opening up vagueness problems in a more glaring fashion) state law involving this "partial birth" abortion procedure came up. His dissent hints broader concerns:
For close to two decades after Roe v. Wade the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. ... The Court’s approach in this regard is revealed by its description of the abortion methods at issue, which the Court is correct to describe as "clinically cold or callous." ... States may take sides in the abortion debate and come down on the side of life, even life in the unborn ...
This is the swing vote life line? The best one could hope for really was that he would accept the path taken in Justice O'Connor's last opinion, which was a rare unanimous (was any abortion ruling unanimous?) ruling noting a health exception was necessary in a parental notification law. The ruling very well might have been strategic, since the opinion noted that the lower courts should usually not overturn abortion laws in full because of some flaws. Judge created exceptions can be made or deemed implied. This is useful given the tendency of pro-life legislatures to pass open-ended laws that are clearly illegitimate in some fashion.
Honestly, though, I still thought the ruling -- dealing with a probable small number of cases comparable to here since how many cases would require immediate abortion even without notification? -- made the hope credible. There was no health exception to this federal law. Likewise, the current Supreme Court doesn't like Congress trying to pass laws that try to do an end around of their precedents. The "don't worry we will just assume there is no health risk here" strategy was just that -- past rulings relied on medical judgment, not legislative say-so.
But, the hope was mostly in vain. The thin life line is that the ruling allowed as applied challenges to the law -- if specific cause for concern is shown (but like noted in oral argument -- reaired on C-SPAN last night* -- this seemed like just the case, since litigation as the abortion went on was unworkable given appellate time etc.). As some note, the net result of such a path (though some like it) is that it invites overly broad laws that will hurt women who need abortions for health or other reasons. As with the spousal notification provision in Casey, the old rule was to focus on those who were affected by such laws.
As noted, some think this a good thing. But, in practice, it is problematic. First and foremost, we are dealing with a fundamental right -- higher scrutiny is justified in such cases. [See brief of law professors here, bottom of page.] The matter of vagueness, which the federal law only dealt with partially as suggested by the lower court opinions, was not really covered by the dissent here. The focus was on the 'as applied' factor. I linked to an anti-abortion law professor/advocate that supports this policy. Her essay notes that First Amendment law is different -- laws are treated in a more suspect fashion. Exactly.
"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." Casey underlined this was a matter of conscience. The connection to the First Amendment, aside from the associational connection, is clear. Likewise, and Justice Ginsburg's highlighting of some of the pro-life rhetoric used in the majority opinion underlines the fact, so is the selective "morality" at issue:
Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." A fetus is described as an "unborn child," and as a "baby"; second-trimester, previability abortions are referred to as "late-term," and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience." Instead of the heightened scrutiny we have previously applied, the Court determines that a "rational" ground is enough to uphold the Act, "the essential holding of Roe," are merely "assume[d]" for the moment, rather than "retained" or "reaffirmed," Casey. [cite material deleted]
It is bad enough that reliance is given on congressional facts filled with errors that there is no need for a "health" exception (there is still a life exception). Again, in answer to some who reference medicinal marijuana (a bad precedent anyway) and the like where Congress gets to decide among competing evidence, fundamental rights require special care here. But, the selective morality rankles. A compelling case to uphold the sanctity of fetal life apparently involves allowing abortions, but doing so in such a way that hurts women. Again, Justice Ginsburg:
Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, or a fetus delivered through medical induction or cesarean. Yet, the availability of those procedures—along with D&E by dismemberment—the Court says, saves the ban on intact D&E from a declaration of unconstitutionality.
So, the cries of horror from some about "partial birth" (it's not "birth," so the term is bogus -- I don't really care if medical sorts don't use a term, they don't have naming rights, but misleading terms overall are illegitimate) abortion is not convincing. Putting aside the fact that this applies to second trimester abortions (tellingly one critic spoke about not reading about such cases ... selective reading tends to do that) too where many do not think the fetus is similarly situated (e.g., feels pain), ABORTION IS STILL ALLOWED. The rule is therefore simply irrational except as a selective moral choice, which is fine if you are the women, but quite less so -- especially given the harm inflicted -- when you are the state.**
But, a lovely new wrinkle was added to the majority opinion as well ... the law, you see, is really for the woman's own good. They might have deep regrets after the fact (the fact this regret might arise in all abortions is the charm of the suggestion), so it is best not the give doctors the option of performing such a distasteful procedure. Again, the alternatives are not exactly better. Still, apparently, full informed consent is too problematic. Anyway, this "for the woman's own good" argument is an odious new path for the pro-life movement. The first link suggests the "facts" path, scare quotes intended, also pop up in voting fraud cases (shades of the prosecutor scandal) too. Again, the dissent hits home:
Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies.
I refer also back to the opening quote -- the right to choose an abortion among other things is a deep moral choice with religious overtones. It is too private, intimate and open to debate to be selectively targeted by the law based on one side's view of the matter. Finally, we have the fact this one fits all policy is set in place nationally, "Congress shall make no law ..." But, there is another problem. Where is the congressional power? Ah, interstate commerce. What isn't in some way affected by that, right, even nonprofits! Justice Thomas (with Scalia) avoids the question:
I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
The two are sure to reaffirm their Casey dissent and bluntly oppose the right to choose as a constitutional right. Chief Justice Roberts and Alito probably like the "die a thousand deaths" approach since it seems less activist, while supplying courts the continual job of micromanaging the matter to determine if each particular facial attack it legitimate (hopefully keeping them out of the mess in the process). But, Thomas' statement was convenient ... after all, his jurisprudence (see the medical marijuana dissent) suggests Congress probably doesn't have the power. This would ironically lead to a 5-4 vote the other way!
Can't have that. Like, there was no way to address the problem, if they really wanted to do so, right? See the Cato brief (lower part of page) for a serious examination of the problems of such a law as an example of federal power, underlining another reason to give it stricter review. Along with the vagueness issue and lack of health exception (plus irrationality of the law mixed with the sexism of 'can't trust women' strategy), this is a third problem. Current law makes attacks on overreaching respecting congressional commerce power a dubious path to take, and conservatives are rarely consistent on the matter. Still, as a policy matter, it is another problem.
As is this ruling overall ... as the links suggest not only on the specific matter, but for the new path it hints. Brought to you thanks to Bush v. Gore. Expect some more fun over the next few years. And, lots more holding actions.
Time to get full control of the national government.
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* If the Supremes don't want the public to focus on its few controversial cases, perhaps it should not only air the audio of a few select cases, making sure to make an abortion (and race) case one of the few.
** Lawrence v. Texas underlines morality alone cannot be used to interfere with fundamental rights. In a related context, bans on sale of contraceptives to minors, Justice Stevens also noted:
Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate. The propaganda technique used in this case significantly increases the risk of unwanted pregnancy and venereal disease.