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Law Articles, News

A Lack of Prudence

by Clarke D. Forsythe
Senior Councel

In June, certain anti-abortion activists bought full-page newspaper ads featuring an “open letter” criticizing James Dobson, founder of Focus on the Family, for his “approval” of the Supreme Court’s April 18 decision in Gonzales v. Carhart, which upheld the constitutionality of the federal Partial- Birth Abortion Ban Act (PBABA) of 2003. The crux of the criticism seems to be that the Gonzales decision was “brutally wicked,” because the Court didn’t prohibit all abortions (or at least D&E abortions). The impact of the “open letter” was multiplied by newspaper reports about the letter in the Washington Post on June 5 and the Los Angeles Times on June 6.

The letter’s criticism of Dobson (and other organizations) for publicly supporting the Court’s decision contained innumerable misstatements, including misunderstandings about the proper role of the Supreme Court, how the Supreme Court operates, why the PBABA was written, the limits of the PBABA, the Court’s abortion doctrine, the records of Justices Scalia and Thomas, the language of the Gonzales opinion, and the future implications of the Court’s decision. Since the “open letter” was published for millions to read, its numerous misstatements deserve a public correction.

The PBABA served several purposes, some of which were fulfilled only with the Gonzales decision. 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 (PBA) and 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 that line through new methods or technology.) Fourth, the Act and the debate surrounding it helped the public better understand the true scope of Roe — that Roe did not legalize abortion simply in the “first trimester,” but up to birth. Fifth, the Act served as a vehicle to prompt a landmark Supreme Court 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.

In their criticism, the authors of the “open letter” are misguided in several important ways.

First, the critics do not understand why the Act was written with the limits it has. The bill was originally written against the severe constraints of the Court’s pro-abortion precedents, a five-justice pro-abortion majority (Justices Breyer, Ginsburg, Stevens, Souter, and O’Connor), and the Court’s Stenberg decision of 2000. 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 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 PBA 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 and 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 Breyer, Souter, Stevens, Ginsburg, and O’Connor. Even if the federal PBABA may be “so narrow that it won’t save many babies” (a questionable premise), that cannot be laid at the door of the 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 the federal PBABA to be so narrow.

Second, the critics do not understand how the Supreme Court operates, and fail to understand the dynamics of majority and minority blocs within the nine-justice Court. A majority of five rules and decides cases. Between the time the PBABA was written and the time it was heard by the Court, 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 PBA. When the case was argued before the Court in November 2006, parties 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 Act, Kennedy 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.

The critics imply that 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 proabortion slant, hostile to any regulation. Such a 4-1 decision would have expanded abortion rights even further. The critics suggest that this would have been better, without explaining why or how.

In the American political system of majority rule, “opting out” of the judicial or political process merely creates or strengthens a pro-abortion majority and eliminates forms of legal or political action that challenge that pro-abortion majority. Prudence compels us to be engaged in the system of majority rule. 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 in evil can be avoided.

Third, the critics extract certain passages from Justice Kennedy’s opinion and read them out of context. Justice Kennedy’s opinion for the majority is divided into five parts. Part I simply distinguishes PBA 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 federal PBABA in detail, its scope and purposes, and rejects the charge that the PBABA 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 — if not hypocritical — since she was part of the pro-abortion majority on the Court 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 that the bill leaves some abortions unprohibited. They did not “concur optimistically” that other forms of abortion could replace PBA; they merely describe the limits of the PBABA.

Likewise, by acknowledging that the federal statute is limited in scope to certain abortions (because of the constraints of Stenberg), the justices do not thereby “endorse” the limited scope; they uphold it as constitutional. When the justices quote the statutory language, they do not endorse one abortion or another. They do not “rule” that abortions unprohibited by the statute “are legal.” The justices do not “approve” abortions that the statutes do 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 over 20 years of opposition to Roe. 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) that they agree that nothing in the Constitution prohibits the PBABA, but they also said (with their separate opinion) that they would go farther and throw out Roe entirely. Unfortunately, the critics don’t give Scalia and Thomas the benefit of the doubt; instead, they attribute to Justices Scalia and Thomas pro-abortion attitudes that are incomprehensible in light of their consistent opinions opposing Roe.

Fourth, the critics 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 Thomas and Scalia, their position is simply that the framers of the Constitution in 1787 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 “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.

Fifth, the critics ignore the broader implications of the Gonzales decision for the future. The implications 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.”

Sixth, the critics assume 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 federal PBABA was consistent with the Constitution, not whether it was fully just or fully moral. It is not the proper role of Supreme Court 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 freewheeling power of judicial review to rewrite or strike down laws. As Princeton professor Robert George has written:

The Constitution . . . places primary authority for giving effect to natural law and protecting natural rights to the institutions of democratic self-government, 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).

Seventh, the critics 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 cannot be completely prohibited.

Imagine, for example, that you just bought a house. You move in and walk out the back door to discover two vicious pit bulls, belonging to your neighbor, roaming the back yard. How do you protect your two young children? However much you might like to shoot the pit bulls, you decide to build a fence around your yard to protect your children. Are you thereby complicit in the care and feeding of your neighbor’s pit bulls — because you didn’t shoot them? Most people would recognize that they aren’t complicit, because countervailing legal authority and obstacles establish where the fence can be built and prevent them from doing more than build the fence. Prudence helps to determine how and where the fence can and should be established.

Containment of a social evil is a moral and prudent objective when the evil 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 1805-07. 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.

Eighth, the critics shortchange the social and legal impact of abortion regulations in general and the PBA bill 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 percent 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 PBA bill and 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, and do we preserve the possibility of future improvement when all of the Good cannot be accomplished now? In exercising wise judgment about what’s 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. The consistent error throughout the “open letter” is a failure to understand the political, legal, constitutional, and institutional obstacles to legal protection of the unborn. Because the critics do not have the patience or objectivity to understand the obstacles, they cannot hope to devise any effective solution to them, with the result that they misdirect their criticism from the pro-abortion justices to those whom they should recognize as their allies in the cause for life.


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).

This article originally appeared in the Fall 2007 issue of Human Life Review. Used by Permission. For a free sample issue of Human Life Review, call 212-685-5210 or visit www.humanlifereview.com.