Gonzales v. Carhart and the Kennedy Coalition
Wednesday April 18, 2007
Profile: Gonzales v. Carhart (2007)
Until recently, we knew where the Supreme Court stood on abortion rights:
Roe Opponents (3):
As you might have expected, Scalia and Thomas attached a concurrence stating opposition to Roe v. Wade, the standard upon which the majority ruling is ultimately based. As you might not have expected, Alito and Roberts did not.
What does this mean? If we were to forget political context for a moment and just look at this ruling as it stands, with three justices solidly behind the pro-Roe decision, two behind it but offering reservations, and four opposed, we might see a Court broken down into categories that look something like this:
Roe Opponents (2):
But every silver lining has a dark cloud. Let's return, for a moment, to the ruling itself.
First of all, contrary to all of the political speeches and propaganda and so forth associated with "partial-birth abortion," there is virtually nobody in the pro-choice movement who actually makes the straw man argument that a woman has the right to electively terminate her pregnancy at term, as the infant travels out of the birth canal. If one reads the relevant text of the bill, it does not address late-term abortions at all--no mention is made of the term of pregnancy. What the Act addresses is a specific kind of abortion called intact dilation and extraction, also known as intact D&X or intact D&E. This procedure, referred to as "partial-birth abortion" by critics, takes place when:
Let me give you an example of the kind of procedure this bill would outlaw. Imagine, if you will, a woman who is 20 weeks pregnant. An ultrasound reveals that something is wrong with her fetus. Although the woman can carry the fetus to term, it will not survive outside of her womb. She makes the difficult decision to have an abortion. Only trouble is that if she has an abortion through traditional D&X or induced labor, she might not be able to have another child. The obstetrician determines that the safest option available to her is intact D&X. Unfortunately, the obstetrician can't perform the procedure because Congress passed the Partial Birth Abortion Act with no health exception. The obstetrician performs an induced labor abortion, the woman's ability to have a healthy child later is compromised, and nobody--not even the fetus--benefits.
Meanwhile, opponents of this legislation are demonized. I am absolutely certain that, after posting this entry, I will get angry emails from readers complaining about how I, along with NOW, NARAL, Planned Parenthood, the ACLU, and most major Democratic presidential candidates, support elective abortions that take place during the natural birth process. I don't. They don't. The Roe standard is elective abortions up to 23 weeks, period. The "partial-birth" concept is a red herring--one that has served abortion opponents well in the past, and will serve them well in the future if civil libertarians do not step up and clarify exactly what this legislation does.
That said, medical associations do differ on whether or not intact D&X is a safer procedure than traditional D&X, whether intact D&X would actually be useful in scenarios like the one I described above, and so forth. They will probably continue to differ. It is entirely possible that this poorly-written ban on intact D&X will do absolutely no harm to anyone. Still, the fact remains that if Congress had just put more effort into writing a better piece of legislation, instead of trying to play political games, they would have been able to produce a well-written partial-birth abortion ban that virtually everyone on both sides of the abortion debate would have found acceptable.
But what would have been the point of that?
See also:
Until recently, we knew where the Supreme Court stood on abortion rights:
Roe Opponents (3):
- Chief Justice William Rehnquist
- Justice Antonin Scalia
- Justice Clarence Thomas
- Justice Stephen Breyer
- Justice Ruth Bader Ginsburg
- Justice David Souter
- Justice John Paul Stevens
- Justice Anthony Kennedy
- Justice Sandra Day O'Connor
We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this right an undue burden, which exists if the regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose."The ruling makes routine mention of a woman's right to have an abortion, and judges the Partial Birth Abortion Act based on whether or not it imposes an "undue burden" on that right. The ruling's conclusion, in essence, is that Congress has the power to outlaw specific medical procedures provided that in doing so the government does not make it substantially more difficult for a woman to terminate her pregnancy.
As you might have expected, Scalia and Thomas attached a concurrence stating opposition to Roe v. Wade, the standard upon which the majority ruling is ultimately based. As you might not have expected, Alito and Roberts did not.
What does this mean? If we were to forget political context for a moment and just look at this ruling as it stands, with three justices solidly behind the pro-Roe decision, two behind it but offering reservations, and four opposed, we might see a Court broken down into categories that look something like this:
Roe Opponents (2):
- Justice Antonin Scalia
- Justice Clarence Thomas
- Justice Stephen Breyer
- Justice Ruth Bader Ginsburg
- Justice David Souter
- Justice John Paul Stevens
- Chief Justice John Roberts
- Justice Samuel Alito
- Justice Anthony Kennedy
But every silver lining has a dark cloud. Let's return, for a moment, to the ruling itself.
First of all, contrary to all of the political speeches and propaganda and so forth associated with "partial-birth abortion," there is virtually nobody in the pro-choice movement who actually makes the straw man argument that a woman has the right to electively terminate her pregnancy at term, as the infant travels out of the birth canal. If one reads the relevant text of the bill, it does not address late-term abortions at all--no mention is made of the term of pregnancy. What the Act addresses is a specific kind of abortion called intact dilation and extraction, also known as intact D&X or intact D&E. This procedure, referred to as "partial-birth abortion" by critics, takes place when:
...the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.The fetus could be 12 weeks old. It could be nine months old. It could be healthy and viable. It could be brain-dead and terminally deformed. As long as it is technically alive, it must be terminated inside of the womb rather than outside of the womb.
Let me give you an example of the kind of procedure this bill would outlaw. Imagine, if you will, a woman who is 20 weeks pregnant. An ultrasound reveals that something is wrong with her fetus. Although the woman can carry the fetus to term, it will not survive outside of her womb. She makes the difficult decision to have an abortion. Only trouble is that if she has an abortion through traditional D&X or induced labor, she might not be able to have another child. The obstetrician determines that the safest option available to her is intact D&X. Unfortunately, the obstetrician can't perform the procedure because Congress passed the Partial Birth Abortion Act with no health exception. The obstetrician performs an induced labor abortion, the woman's ability to have a healthy child later is compromised, and nobody--not even the fetus--benefits.
Meanwhile, opponents of this legislation are demonized. I am absolutely certain that, after posting this entry, I will get angry emails from readers complaining about how I, along with NOW, NARAL, Planned Parenthood, the ACLU, and most major Democratic presidential candidates, support elective abortions that take place during the natural birth process. I don't. They don't. The Roe standard is elective abortions up to 23 weeks, period. The "partial-birth" concept is a red herring--one that has served abortion opponents well in the past, and will serve them well in the future if civil libertarians do not step up and clarify exactly what this legislation does.
That said, medical associations do differ on whether or not intact D&X is a safer procedure than traditional D&X, whether intact D&X would actually be useful in scenarios like the one I described above, and so forth. They will probably continue to differ. It is entirely possible that this poorly-written ban on intact D&X will do absolutely no harm to anyone. Still, the fact remains that if Congress had just put more effort into writing a better piece of legislation, instead of trying to play political games, they would have been able to produce a well-written partial-birth abortion ban that virtually everyone on both sides of the abortion debate would have found acceptable.
But what would have been the point of that?
See also:
Comments
Tom Head,
I disagree with your assessment of a 7-2 pro-Roe majority. Generally, when a case is decided by the Supreme Court, it is decided on the narrowest possible grounds and so as to not disturb established precedent, if applicable. The case before the Court was about intact D&E, so good jurisprudence dictates that the opinion should only overrule (if necessary) cases that are about intact D&E.
Of course, Kennedy chose to keep the established “undue burden” standard, but that could be interpreted in one of two ways:
1. He, Alito, and Roberts agree with it; or
2. Since the ban met the “undue burden” standard, there is no jurisprudential reason to make another standard to achieve the same result.
Excellent post, though.
Likewise. Thanks for the kind words!
To be nitpicky, the case before the Court was actually about live intact D&E/D&X. Intact D&X is still perfectly legal as long as the fetus is not alive when it’s performed.
Re the majority ruling: Yes, and your argument explains why Scalia and Thomas went along with the majority ruling despite their reservations with Roe. But Scalia and Thomas are already on record as opposing Roe; the issue more relevant to the 7-2 majority, I think, is that Alito and Roberts did not join Scalia and Thomas in the concurrence. Why wouldn’t they, unless they agree with Kennedy’s long-held and well-documented position that Roe was correctly decided and should be upheld?
People expect Alito and Roberts to be as far right as far right can get, but let’s remember that Kennedy was a Reagan appointee–the appointee who got the Robert Bork spot. Nobody expected him to support Roe in the Casey majority, and yet he did. I see no reason why Alito and Roberts wouldn’t be equally capable of surprising us on this issue.
Cheers,
TH
Well, there’s pre-and-post Federalist Society judicial appointees. Scalia and Thomas were really the first conservative appointees who were nominated for conservative track records and, basically, an entirely new way of analysing judicial candidates to avoid the longstanding problem of having jurists take a leftward tack once on the bench.
After Bork, Reagan was pressured to appoint someone more moderate. I believe that Kennedy was put on for that reason.
That said, Kennedy goes back and forth on Roe. As I recall, he once said that he would vote to overturn it if the case came before him now and regrets his Casey decision.
I have not had a chance to read the entire opinion, so maybe you can help out here. If the concurrence were Roberts, Alito, Scalia, and Thomas, with Kennedy writing the opinion that he did, would the end result be a 4-4-1 opinion (i.e. Scalia, Thomas, Alito, and Roberts on the plurality, Kennedy concurring in order to make the actual decision, and the four dissenters)? If that were the case, I could really understand why they did not join in: a 4-4-1 opinion decides the case in front of it, but, as I recall, does not become established precedent. This could have been a lose the battle, win the war choices to join Kennedy’s rationale, allow the ban, and have that decision as precedent. That leaves the Roe issue for another time.
I don’t think they could have overturned Roe with the case before them; they could only overturn it to the extent that it deals with live, intact D&E. What I don’t understand is why Scalia and Thomas bothered with an anti-Roe concurring opinion at all… I mean, even if three other justices joined, it wouldn’t be proper to overturn Roe on the case before it.
(Thanks, by the way, for the correction. I did note that the statute only applies to living fetuses, which is a good thing - because regulating how a doctor handles a miscarriage is just a little disturbing.)
Right–and because in those rare cases where intact D&X is needed, it is still perfectly legal to inject potassium chloride into the umbilical cord before the procedure is performed.
I do have to take issue with the Kennedy claim. He has never stated that he would overturn Roe if given the opportunity again, period; that’s an urban legend that was resurrected over the past couple of years as various states considered abortion bans and legislators had to come up with something to explain why they were voting for unenforceable bills. Trust me: If Kennedy had ever made such a statement, national anti-abortion groups would not have been so apathetic with respect to state bans challenging Roe.
I also have to disagree with your assessment of Gonzales v. Carhart as it relates to Roe. The central question of the ruling was “Does the Partial Birth Abortion Act pose an undue burden on a woman’s right to choose an abortion, as described in Roe v. Wade?” This would have been a perfect opportunity to dispose of the undue burden standard altogether by overturning Roe v. Wade, if the Court had so chosen. Instead, Kennedy wrote an extremely narrow ruling that is contingent on the lack of a scientific consensus regarding the efficacy of live intact D&X and which, based on that lack of consensus, argues that a prohibition on live intact D&X does not pose an undue burden.
This is why it is essential to read the ruling itself. Virtually every abortion-related advocacy group, on both sides of the issue, has completely misconstrued what the ruling actually says. It was not an assault on Roe. It may, in fact, have no negative consequences whatsoever. But some high-profile folks in the pro-choice community have found a way to snatch defeat from the jaws of stalemate.
Likewise, because the ruling was contingent on a case that Scalia and Thomas strongly opposed, it made perfect sense for them to offer up a concurrence making it clear that they agree with the ruling’s rationale in principle only. The fact that Alito and Roberts did not participate in the concurrence could indicate that (a) they disagree with it, (b) they are still trying to decide whether or not they disagree with it, or (c) they agree with it, but don’t have the guts to say so. I personally find (b) and (c) unlikely, but your mileage may vary.
Cheers,
TH
Tom,
Having read a bit more of the opinion (I’m slowly digesting), I’ll defer to you. Nevertheless, having spent waaay too much of my life at Federalist Society events, I’m familiar with the idea among very conservative jurists that issues are to be decided on the narrowest possible grounds. The case can be decided without overturning precedent, so it would work that way. There is a lot of contempt among those in favour of judicial restraint when judges go further than mandated by the case in front of them.
I’ll add (d) to the above: they agree with it, but see no reason to say so. This could be because: (1) they are classic conservative jurists who decide a case on narrow grounds and simply don’t care; if it meets the Roe/Casey standard, there is no reason to overturn them; or (2) it doesn’t matter if they agree or not, because Stevens is 87 and might retire soon and they want Bush to appoint another Scalia without signaling to the entire nation that Roe bites the dust if they do so.
As I understand every conservative around me, if the question can be answered without overturning precedent, you don’t overturn precedent.
It’s interesting that Thomas put in his concurrence anyway. Possibly, they are starting to say that they don’t want this case to be seen as reinforcing Roe and its progeny.
See, I’m still thinking that if Roberts and Alito joined the concurrence, the rationale of the plurality would be: Roe is not good law, therefore the PBA ban does not rise to the level of a Constitutional violation, therefore it is upheld. There would be 4 for the plurality, 1 for Kennedy’s theory, and 4 for the dissent. That means that the ban is upheld and there is no controlling precedent from the case. I’ll add that as (e).
Other than that, you raise an interesting point. I wonder, as jurists, how often Roberts and Alito make comments like the one in the concurrence… which would also be something to consider. Thomas seems to like to concur, just for kicks.
Thank you for great commentary!
And thank you for yours!
I agree that (d) and (e) are distinct possibilities.
Cheers,
TH
It’s good to see an analysis of this case that isn’t steeped in partisanship. I’ll have to read it again to figure out to what extent I can agree with it.
Here’s something else to speculate about: Suppose that the opponents of the law had argued that Congress was acting outside its authority under the Commerce Clause. Is it possible that Thomas and Scalia would have voted to strike down the law on that basis? The wording of their concurring opinion suggests that’s a possibility.
I was thinking about a case I read in admin law where a Thomas concurrence said, basically, that he votes with the majority but would strike down the law on the grounds that the Commerce Clause doesn’t even allow for the administrative agency system as we have it. He recognised, though, that it would immediately dismantle most of our government and thus would want to avoid that result.
Scalia and Thomas might vote to overturn the law on Commerce Clause grounds, EXCEPT for the fact that it’s explicitly limited to doctors who practice in interstate commerce. So it would more be that they might vote to acquit a doctor who is charged under the statute but was not truly part of ISC.
It’s interesting, because the Raich case and the Oregon assisted suicide cases were ISC cases that benefit conservative values. Scalia doesn’t vote the way you think that he would vote, given his strict constructionalist leanings.