By Clarke D. Forsythe
Senior Councel, Americans United for Life
In Gonzales v. Carhart, a five-justice majority of the United States Supreme Court (USSC) -- Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito -- upheld the constitutionality of the federal Partial Birth Abortion Ban Act of 2003. Although no state ban on partial-birth abortion was directly before the Court, the decision also suggests that carefully drafted state prohibitions on partial-birth abortion will also be upheld. But more important than either of those -- for future test cases and for reducing abortions -- is the implications that Gonzales holds for broader regulations on abortion.
The prospect for broader regulations is contained in the part of the Gonzales opinion in which the five-justice majority effectively restored the "substantial obstacle" or "undue burden" test (first enunciated in the Court's 1992 decision in Planned Parenthood v. Casey) and applied it in Gonzales. This seems a clear effort to restore Casey over Stenberg as the guiding standard for reviewing state abortion regulations. The application of that more flexible test by these five justices suggests that broader regulations of abortion that make medical sense will be upheld, especially if they are designed to provide women with more information about the nature, risks, and alternatives to abortion. But Justice Kennedy, the author of the Gonzales opinion, apparently remains the key fifth vote for upholding any regulation.
The broader implications of the Gonzales decision were certainly clear to abortion advocates. Nancy Northup, president of the Center for Reproductive Rights, was quoted as saying within days of the decision: "We are going to see a whole new onslaught of restrictions on abortions coming out of this decision." That, in a nutshell, is the potential impact of Gonzales, if the Gonzales majority remains for the future.
Detailed Analysis
The Court's decision in Gonzales v. Carhart has been the subject of significant misreporting by the media and by detractors on both sides of the abortion debate, and needs a clear and careful evaluation of all its nuances and implications. It may have significant implications for abortion policy, future abortion litigation, and bioethics if the new majority of Justices Roberts, Kennedy, Scalia, Thomas, and Alito remain for the foreseeable future.
Roe v. Wade must be overturned if a restored culture of life is possible in America. Gonzales is not our ultimate goal but could be a significant, positive step forward. Those who desire to overturn Roe must first understand Gonzales and the current justices before they can devise any realistic future strategy to overturn Roe.
Until the pieces are in place to make the overruling of Roe a realistic possibility, regulations that put fences around the abortion license are imperative. They are necessary, among other reasons, to limit the breadth of the abortion license, to reduce abortions, and to continue to raise important issues in the legislatures and in electoral politics. It is both moral and effective to limit a social evil when it cannot be entirely prohibited.
This review starts with the most obvious result of the decision, the upholding of the federal Partial Birth Abortion Ban Act of 2003 (PBABA), addresses the implications for state bans on partial-birth abortion, surveys the broader implications for abortion policy, and concludes with an observation of Gonzales' potential impact on bioethics.
The broadest result of Gonzales is that the Court now has a five-justice majority that is, in a significant sense, anti-abortion. It's significant that the majority opinion was written by Justice Kennedy -- he joined the joint opinion in Casey but wrote a stinging dissent in Stenberg v. Carhart. And it's significant that the majority opinion was a true majority opinion joined by five justices without separate qualifications or opinions.
USSC decisions are typically the outcome of earlier precedents. The significance of Gonzales must be understood against the backdrop of earlier cases, especially Casey. Gonzales appears to be an attempt by Justice Kennedy to restore a more flexible standard for reviewing abortion regulations, and the more flexible "substantial obstacle" standard of Casey is now supported by a majority of five justices.
Why The Federal PBA Was Drafted So Narrowly
The most obvious result of Gonzales was that the PBABA was upheld as constitutional. The Act served several purposes, some of which were realized only with the Gonzales decision of April 18, 2007. First, by highlighting a particular form of abortion, the PBABA brought national public attention to the gruesomeness of abortion more than all previous educational efforts (as a recent study by Overbrook Research and previous polling data suggest). Second, by drawing a comparison, it showed the cruelty of partial-birth abortion and dilation and extraction (D&E) abortions, as even the pro-abortion justices implicitly conceded. Third, the Act served as a legal fence between abortion and infanticide, to keep the abortion license from expanding into out-and-out infanticide. Though the Roe decision drew the constitutional line between abortion and infanticide at birth, Roe did nothing to prevent abortionists from erasing the line through new methods or technology. Fourth, the Act and debate helped the public better understand the true scope of Roe -- that Roe did not simply legalize abortion in the "first trimester" but up to birth. Fifth, the Act served as a vehicle to prompt a landmark USSC decision gutting (if not explicitly overruling) the Court's terrible decision in 2000 in Stenberg v. Carhart. Other benefits of the Act could be identified.
Second, the Act was written under the strict limits imposed by the Court's pro-abortion majority, the Court's pro-abortion precedents, the then existing five-justice, pro-abortion majority (Justices Breyer, Ginsburg, Stevens, Souter, and O'Connor), and the Court's 2000 decision in Stenberg v. Carhart. The pro-abortion majority of justices had declared an almost absolute "right" to abortion from conception to birth, and had previously struck down legislative attempts to prohibit another type of abortion. While precluding any abortion prohibitions between conception and birth, the pro-abortion justices left Congress and the states only minimal room to enact regulations (not prohibitions) in the margins around the abortion license. After prohibitions on partial-birth abortion were enacted in 30 states, the pro-abortion majority struck down all of those state laws in Stenberg, further raising the obstacles to any state or federal abortion regulations. Sponsors in Congress then redrafted the Act more narrowly to fit within the constraints of Stenberg while continuing the public debate.
To accomplish the limited but significant goals of the Act under severe constraints, the Act had to define the difference between partial-birth abortion (which might withstand scrutiny by the pro-abortion majority) and the D&E abortion (which the pro-abortion majority in 2000 supported). The exceptions or limits in the bill were not the preference of the Congressional sponsors but were compelled by the pro-abortion Supreme Court majority of Justices Breyer, Souter, Stevens, Ginsburg, and O'Connor. Even if the PBABA may be "so narrow that it won't save many babies" (a questionable premise), that cannot be laid at the door of the legislative authors, but is a direct result of the Court's pro-abortion majority. The Act could not effectively touch the D&E procedure because of Stenberg. While the margins that the pro-abortion majority has drawn around the abortion license may be irrational, it's not irrational for the states (or Congress) to attempt to fence in the abortion license along the margins the Court has drawn. Yes, the PBABA seems ineffectively narrow, but it is the pro-abortion justices' line-drawing that forced it to be so narrow.
It is also necessary to understand the dynamics of majority and minority blocs within the nine-justice Supreme Court. A majority of five rules and decides cases. Between the time that the PBABA was written and heard by the Court in November 2006, the justices had changed. Justice Kennedy became the decisive fifth vote, and the decisive fifth vote effectively decides how a majority opinion is written. Justice Kennedy was in the middle of the nine -- supporting "abortion rights" before viability but supporting a prohibition on partial-birth abortion. But between the Stenberg decision and 2006, the Court's membership changed. Justice Alito had replaced Justice O'Connor, the crucial fifth vote in Stenberg, placing Justice Kennedy "in the middle." When the case was argued before the Court in November 2006, many on both sides believed Kennedy to be the decisive fifth vote for either upholding the PBABA or striking it down. By voting to uphold the PBABA, Kennedy's position largely determined the language of the opinion. Because of Kennedy's partial support for abortion, Chief Justice Roberts and Justices Scalia, Thomas, and Alito were constrained in shaping the outcome of the opinion.
Some critics imply that Justices Roberts, Scalia, Thomas, and Alito should have abstained and walked off the Court, rather than join the limited result with Justice Kennedy. This would have resulted in a 4-1 pro-abortion result, with Justices Breyer, Ginsburg, Souter, and Stevens allied against Justice Kennedy as the sole dissenter, leaving constitutional law in a decidedly more pro-abortion slant, hostile to any regulation. Such a 4-1 decision would have expanded abortion rights even further.
In the American political system of majority rule, "opting out" of the judicial or political process would merely create or strengthen a pro-abortion majority and eliminate forms of legal or political action that challenge the pro-abortion majority. Prudence compels us to be engaged in the system of majority rule, and the doctrine of cooperation explains how we can effectively do it without "dirtying" our hands. While some may opt-out of the political and legislative process, like the Garrisonians of the 1840s, their conscience cannot dictate a similar course for others, especially when prudential engagement is possible and cooperation can be avoided.
The Kennedy Opinion In Context
Critics of the Kennedy opinion extract certain passages from Justice Kennedy's opinion and simply read them out of context. Justice Kennedy's opinion for the majority is divided into five parts. Part I simply distinguishes partial-birth abortions from D&E abortions and describes the history of the litigation. Part II applies the legal standards from the 1992 Casey decision instead of the harsher standards from the 2000 Stenberg decision. Part III examines the language of the PBABA in detail, its scope and purposes, and rejects the charge that it is unconstitutional. Part IV affirms that the legal line established by the PBABA is constitutional under Casey and -- what the critics most seriously miss -- responds to the dissent of Justice Ginsburg often without explicitly referring to her dissent. Part V concludes that the facial challenge to the PBABA should not have been heard by the federal courts.
The passages in the Kennedy opinion quoted out of context are not intended to approve of abortion but to respond to the contention in the Ginsburg dissent that the PBABA is so narrow (by focusing on one procedure) that it won't "save any babies." (Ginsburg's charge is, of course, ironic, since she was part of the pro-abortion majority in Stenberg that so broadly defined the abortion "right" as to push permissible regulations to the narrow margins around the "right.")
For example, when Kennedy writes that the "medical profession . . . may find different and less shocking methods to abort the fetus," he's responding to Ginsburg's contention that the bill will have no effect. While Kennedy observes that abortionists "may prefer not to disclose precise details of the means" of abortion, he turns around and affirms that legislation can require that women get full information. The justices in the majority do not "endorse" an "injection that kills the fetus." They do not endorse other forms of abortion; they merely acknowledge the limits of the PBABA -- that the bill leaves some abortions unprohibited. They did not "concur optimistically" that other forms of abortion could replace partial-birth abortion; they merely describe the limits of the PBABA.
Likewise, by acknowledging that the PBABA is limited in scope to certain abortions (because of the constraints of Stenberg), the justices do not thereby endorse the limited scope; rather, they upheld it as constitutional. When the justices quote the statutory language, they do not endorse one abortion or another. They did not rule that abortions unprohibited by the statute are legal. The justices do not approve abortions that the PBABA does not prohibit. While the critics claim that the justices did not "grant authority to save the life of even a single child," they did uphold a statute that established a legal fence against abortions during the process of birth. These statements, in context, are either simple descriptions of the language and limits of the PBABA or responses to Justice Ginsburg's dissenting accusations that the statute would do nothing.
If there was any remaining confusion about the meaning of these passages in Justice Kennedy's opinion, the fact that Justices Scalia and Thomas joined Kennedy's opinion should have been enough to allay pro-life confusion, given their record of opposing Roe over 20 years. Justices Thomas and Scalia obviously saw no necessary inconsistency between their joint concurring opinion (that the Constitution contains no right to abortion) and Kennedy's opinion. In effect, Justices Thomas and Scalia said (by joining Kennedy's opinion) "we agree that nothing in the Constitution prohibits the PBABA" but also said (with their separate opinion) "we would go farther and throw out Roe entirely." Unfortunately, the critics don't give Justices Scalia and Thomas the benefit of the doubt; instead, they attribute pro-abortion attitudes to Justices Scalia and Thomas that are incomprehensible in light of their consistent opinions opposing Roe.
The critics also impugn Justices Thomas and Scalia for their established position that abortion is a matter to be decided by the people at the state level because the Constitution contains no right to abortion. Whether one agrees or disagrees with them, their position is simply that, in 1787, the framers of the Constitution left the abortion issue to be decided by the states as it had been since colonial times, and that the framers of the 14th Amendment after the Civil War did not intend to take this authority away from the states. It is not so-called "legal positivism" to believe that the Constitution's framers left abortion policy to the states. It is simply a strict reading of the language of the Constitution and of the distribution of powers between the state and federal governments. Since there is no doubt that the framers of the 14th Amendment did not explicitly address abortion or the unborn, the position of Justices Thomas and Scalia is entitled to respect, even if it is respectful disagreement.
The Limited Role Of The Court In Reviewing Federal Legislation
Some have criticized the Gonzales opinion based on the assumption that the Court can or should redraft federal laws to more fully prohibit a social evil. That's not what justices should do in reviewing the constitutionality of Congressional laws. That's the role of the legislature, not judges, as it is with any criminal law. The justices were called upon to decide whether the PBABA was consistent with the Constitution, not whether it was fully just or fully moral. It is not the proper role of USSC justices to strike down legislation that is not fully just or fully moral. Keeping the justices within that limited role is necessary to preserve self-government. Even natural law does not vest judges with a free-wheeling power of judicial review to rewrite or strike down laws. As Princeton Professor Robert George has written:
[T]he Constitution . . . places primary authority for giving effect to natural law and protecting natural rights to the institutions of democratic selfgovernment, not to the Courts, in circumstances in which nothing in the text, its structure, logic, or original understanding dictates an answer to a dispute as to proper public policy. It is primarily for state legislatures, and, where power has been duly delegated under the Constitution, to the Congress to fulfill the task of making law in harmony with the requirements of morality (natural law), including respect for valuable and honorable liberties (natural rights).
Some critics of the majority opinion in Gonzales completely discount the morality and effectiveness of a policy of legal containment of a social evil when prohibition is not possible. The PBABA established a fence against the abortion license. Laws can establish moral and effective fences around a social evil when the evil itself cannot be completely prohibited.
Containment of a social evil is a moral and prudent objective when it cannot be completely prohibited. The morality and effectiveness of such fences is evident in history. William Wilberforce and his allies erected legal fences around the slave trade between 1787 and 1807, when they could not completely prohibit it; those fences reduced the slave trade substantially before the final push of 1805-1807. The Whigs and Republicans sought to erect legal fences around slavery in the 1840s and 1850s, when they could not completely prohibit it. Though we think of fences as static, they can be dynamic in provoking public awareness of or opposition to the social evil. It was Republican Party support for the fence against the expansion of slavery into the western territory that provoked southern secession during the winter of 1860-61.
Some critics have shortchanged the social and legal impact of abortion regulations in general and the PBABA and debate in particular. A series of statistical analyses by Professor Michael New, published by the Heritage Foundation, has analyzed the impact of state regulations on abortions during the 1990s, and largely attributes the 17-19% drop in abortions in the 1990s to such regulations.1 In addition, a recent study of public opinion over the past decade by the independent firm, Overbrook Research, attributes much of the positive change in the pro-life direction to the PBABA and the ensuing public debate.
All of the critics' misunderstandings have a common source in imprudence. Prudence is a word that, unfortunately, has fallen out of our vocabulary. Prudence is the preeminent of the four cardinal virtues. It means practical wisdom and focuses on effective action. It is highly valued in the Greek, Roman, Christian, and Stoic traditions and repeatedly praised in Scripture. When it comes to politics, prudence asks four questions about proposed action:
- Is the goal a good one?
- Do we exercise wise judgment about what's possible in the circumstances?
- Do we effectively connect means to ends?
- Do we preserve the possibility of future improvement when all of the good cannot be accomplished now?
In exercising wise judgment about what is possible in the circumstances, the moral and intellectual virtue of prudence requires, among other things, that we accurately understand the cause of obstacles that impede our pursuit of the Good and that we devise effective solutions to those obstacles. To secure any future legal protection for the unborn, it is necessary to understand the political, legal, constitutional, and institutional obstacles. Gonzales shows some measure of progress as well as the continuing obstacles.
Notes
1. New, Michael J. 2004, "Analyzing the Effect of State Legislation on the Incidence of Abortion During the 1990s." Heritage Foundation Center for Data Analysis Report #04-01 (http://www.heritage.org/Research/Family/cda04-01.cfm);
New, Michael J. 2006, "Using Natural Experiments to Analyze the Impact of State Legislation on the Incidence of Abortion." Heritage Foundation Center for Data Analysis Report #06-01 (http://www.heritage.org/Research/Family/cda06-01.cfm);
New, Michael J. 2006, "Getting it Wrong: How The New York Times Misinterprets Abortion Statistics and Arrives at Incorrect Conclusions." Heritage Foundation Center for Data Analysis Report #06-05 (http://www.heritage.org/Research/Family/cda06-05.cfm);
New, Michael J. 2007, "Analyzing the Effect of State Legislation on the Incidence of Abortion Among Minors." Heritage Foundation Center for Data Analysis Report #07-01 (http://www.heritage.org/Research/Family/cda07-01.cfm).