In Abortion Battle, the Tie Went to the Congress

Legal scholars and historians are going to be fighting for decades over the scope and meaning of yesterday's big abortion ruling. Journalists already are offering their own perspectives on one of the biggest cases of the term and certainly the biggest victory for anti-abortion advocates in a generation. And of course the rest of you already seem to be fighting over it (if the comments to my last post are any indication).

Me? Putting aside the emotional nature of this debate for partisans on both sides, I find the most fascinating aspect of the ruling to be the way the Court's majority upheld the federal ban against these sorts of abortion procedures despite the fact that no fewer than three different trial judges, and three separate appellate courts, determined after three hotly-contested trials that the procedure in question often is the most appropriate medical procedure. In other words, when given the choice between the suspect Congressional findings that purported to support the law (I say "suspect" because every court but the Supreme Court said so) and the findings of the federal judges who held long and complicated trials, Justice Anthony M. Kennedy and Company chose the former over the latter.

And whereas the Court seven years ago in its earlier ruling on this issue declared that a lack of unanimous medical consensus on the necessity of the procedure required the law to continue to recognize an exception allowing the procedure where the woman's health was at stake, the Court yesterday declared that this lack of medical unanimity meant the precise opposite-- that Congress could ban the procedure outright. Justice Kennedy wrote: "The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. the Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."

In her stinging dissent, Justice Ruth Bader Ginsburg focused upon this methodology. She wrote that Kennedy's assertion is "bewildering. Not only does it defy the Court's longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty, it gives short shrift to the records before us, carefully canvassed by the District Courts. Those records indicate the the 'majority of highly-qualified experts on the subject believe [the procedure] to be the safest, most appropriate procedure under certain circumstances.'" For me, this exchange begged the question: what was the point of the three trials, and the three appellate court rulings? Hopefully history, or a future ruling, will help answer that question.

By Andrew Cohen |  April 18, 2007; 10:22 PM ET
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For me, the most fascinating part of the decision was Justice Scalia's concurring opinion (joined by Thomas). His four sentences, particularly the last two, say volumes:

"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."

Given the Rehnquist Court's tightening of the Commerce Clause in U.S. v. Lopez (invalidating the Gun-Free School Zones Act of 1990) and U.S. v. Morrison (invalidating the Violence Against Women Act of 1994), it is hard to imagine that the Partial-Birth Abortion Act of 2003 would survive the same scrutiny.

If Counsel for Carhart, et al. were writing a law school exam, give them a C- for missing a huge issue.

Posted by: Nellie | April 19, 2007 09:48 AM

I would suggest that another point is the more crucial part of the decision: Justice Kennedy's apparent assertion that the woman's right to choose is circumscribed by the state's right to protect life, and the implication that the Supreme Court in recent decisions has not paid sufficient deference to that state obligation. Kennedy seems to be saying that recent decisions explaining and defending a woman's right to choose have given too much deference to the woman's right and too little to the States obligation to protect life.
Kennedy refers to the three-part rule ennunciated in Casey: 1)the right of a woman to have an abortion BEFORE viability without undue interference or creation of a substantial obstacles by legislation; 2)the confirmation of the state's power to restrict abortions AFTER fetal viability if the law contains exceptions for pregnancies which endager the woman's health or life; and 3)the fact that the state has a legitimate interest from the ONSET of a pregnancy to protect BOTH the health of the woman AND the life of the fetus. Justice Kennedy's goes on to declare that these three rules are complimentary and are NOT in conflict with each other. Perhaps.
But the language used by Justice Kennedy in making sure all three guidelines are in balance opens potential doors for the right to life proponents to use to further restrict abortion rights. Some examples: a) He declares that laws whose incidental effect is to make it more difficult or more expensive to procure abortion may not be so restrictive as to invalidate the law, b) the better rule should be that when the medical community disagrees as to whether a proceedure does or does not minimize significant health risks to women, Congress can make its own reasonable determination to ban a procedure if there are reasonable alternatives; and c) the health exception cannot be used to prohibit the government's responsibility to protect life.
We probably can expect therefore that efforts will continue to incrementally restrict the ability to choose abortion, and that those efforts will find ammunition in this decision to support those efforts.

Posted by: John G. | April 19, 2007 09:54 AM

The unanimity of the lower courts is most probably a direct result of Stenberg v. Carhart. The factually identical law upheld in Stenberg makes it pretty difficult for a lower court to have ruled differently. If that wasn't on the books, the lower courts could have split on the issue.

Posted by: dc law student | April 19, 2007 10:20 AM

Nellie and others,
I have been wondering the same thing. In fact in my first year of law school, my constitional law final gave us a copy of this very Act and asked if it would be upheld from both a Commerce Clause perspective and a due process perspective.

I do know that Planned Parenthood and others considered the Commerce Clause approach but rejected it. I am not sure why though. Anyone want to shed light on this?

Posted by: veryafraid | April 19, 2007 12:02 PM

Why do lawyers and courts think they should dominate every issue in human existence?

Lawyers don't do medicine. How would they like physicians doing law?

There are certain bubble boundaries in professional practice, into which non-professionals in that field should not insert themselves. Women's health care is one of those bubbles.

Posted by: On the plantation | April 19, 2007 12:35 PM

Kennedy implied in his right to life of the fetus analogy what I have been saying for a while, Congress can dictate when the benefits of citizenship begin. This was the threshold test in Roe, before any right to privacy was addressed. The reason a right to health and a right to privacy are allowed to dominate is because the majority in Roe v. Wade found that there was no protection under the constitution until birth, given the plain language of the 14th Amendment. Of course, Congress could change this explicitly under the 14th Amendments's enforcement provisions. Kennedy allowed the Congress, in enacting the PBAA, to do so implicitly. Of course, a future Congress can change its mind and either give explicit protection to all fetuses, all fetuses after the first trimester or all fetuses in the third trimester. They are not likely to do so starting at conception, since doing so would make doctors liable for not only not terminating these pregnancies, but also for taking measures so that these pregnancies do not terminate naturally - which would result in the end of obstetrics or at least of pre-natal care. The point is, the Congress has the final say in the matter of when citizenship under the constitutiona begins, not the Court and not the states. I offered this line of reasoning to the Respondent in this case and they did not want to use it, since if they had won with it (and there is doubt that, given Kennedy's dissent in Cahart v. Stenberg, it could have gone the other way) it would have given the other side a modus opporandi to restrict abortion in the way I just described.

Posted by: Michael Bindner | April 19, 2007 01:56 PM

To On the Plantation: I guess the simple answer as to why lawyers and courts stick their noses into any issue is because the people ask them to stick their noses in.
The slightly more complicated answer is they are involved in abortion rights because they either created the right out of whole cloth(if you are a strict constructionist) or clarified the right (if you believe in a living constitution). Given this it is a little late to tell them hands off. Besides there are plenty of civilians more than willing to use their own bought and paid for attorneys to argue for what they want--on both sides of the issue.

Posted by: John G. | April 19, 2007 02:02 PM

I think when the case began, PP and the pro-choice side believed they would win on the merits of the health exemption and that was the precedent they were after, another ruling reaffirming Stenberg and making the precedent that much stronger against future attacks. The loss of Rhenquist and his replacement by Roberts was predictable, but I think they thought they-d still have O'Connor on the court. To add a separate appeal of Congress' authority would have needed to start the process again at the lower court anyways to my understanding, and it will probably be the next step. In short, I don't think they wanted the law thrown out on a technicality at first, but they'll take it now.

Posted by: Michael | April 19, 2007 02:56 PM

If this Supreme Court decision is so egregious why doesn't Congress simply change the law? Democrats obviously hold the majority and if it is "true" that the American people are outraged then there would be principled political advantage for Democrats taking this course. This would require ingnoring the fact that many Democrats voted for this ban when the law was passed but that would just be business as usual.

Posted by: Erick Blair | April 19, 2007 03:13 PM

Erick Blair is correct. Congress and President Clinton 44 will likely change the law, although I don't think there will be an out and out repeal, since the vast majority of the public hates the banned procedure. If the facts were our there on the remaining legal second trimester procedure they would be against it as well.

The question of what is next is timely. The question is no longer when will Congress redraw the line of protection for the unborn, the question is how and when. Will it do so implicitly or explicitly? Currently, it does so implicitly and unevenly - banning termination coincident with delivery but not prior to it. It is safer for women, given the danger of the other procedure, to ban it as well (which is likely in the minds of the sponsors if they had the votes).

So the question is, where to explicitly draw the line of constitutional protection?

Posted by: Michael Bndner | April 19, 2007 03:41 PM

There are a few options on when to draw the line. Conception is not a good place, since drawing the line there means that parents could sue their doctors if their embryos die, either before or after implantation.

The start of the fetal heart beat is another option, since it mirrors the rule of thumb for death, its cessation. The problem with this point is that many miscarriages occur naturally after the heart starts - and this is a good thing because in the majority of cases the embryo is genetically flawed. Making these embryos subjects of law would give parents a cause of action against doctors who could not prevent their loss, even though this loss natural and beneficial to all (even if it is heartbreaking - which brings up an interesting point, the statistics on abortion and how many lives were lost ignore the fact that half of first trimester abortions would have ended up as miscarriages anyway).

Note to all the pro-lifers, I am not talking here about the moral value of the fetus, I am talking about legal recognition. There is and must be a big difference.

An apt decision point is still viability, meaning the point where the child can fully function outside the womb. While neonatology has rendered this distinction almost meaningless, it is possible to recast it in terms of an obvious bilogical marker, the development of the lungs. If the lungs are well enough developed to sustain life, the child should merit protection. If intubation is required to sustain life (exception the normal intubation required due to a cesarian section), the child should not be subject to the law, for the simple reason that physicians should not be held accountable for its preservation. In other words, a child should be legally protected if the parents can sue the obstetrician if it dies. I can think of no eminently sounder legal test. The venue for this determination should be the United States Congress. State legislature, which are not sovereign, should not be allowed to make this decision. Neither should activist conservative courts.

Posted by: Michael Bindner | April 19, 2007 03:53 PM

The question of how far the Court will go has been the subject of much jubilation on the right and much hand wringing on the left. I think the facts of the decision show the answer - as far as Justice Kennedy will take it. Absent further congressional action, I do not believe he will take it any farther than he already has. Until Congress acts to further restrict abortion, this case is not the start of further action on abortion. It is the end of it. Kennedy seems to have implied that if the fetus is out of the womb, it is protected by the Constitution (even though he did not use the 14th Amendment language specifically). If the child is within the womb, it is not born, so that an equally developed child may in fact be aborted as long as it does not emerge first. Unless Congress acts further, the debate is over. Kennedy is unlikely to sign onto any reveral of Roe, so until another Justice like Alito is added to the Court (and this won't happen under this President) this debate is done.

Posted by: Michael Bindner | April 19, 2007 04:00 PM

To: On the Plantation

It has been said far more elequently that I am about to put it, but at the time when lawyers were writing the Constitution, doctors were applying leeches to their patients to cure a headache. In fact, George Washington's doctors almost bled him to death.

Posted by: Nellie | April 19, 2007 05:00 PM

"Kennedy implied in his right to life of the fetus analogy what I have been saying for a while, Congress can dictate when the benefits of citizenship begin."

No, not the benefits of citizenship. The 14th Amendment makes it pretty darn clear (much to the anger of many ocnservatives on both this issue and immigration), Birth is where citizenship begins. The issue here is where does life begin and how much does the state have an interest in protecting it at various levels. The common rule in the past has been the right to privacy of the woman outweighs the rights of the fetus prior to fetal viability in all circumstances, and after that it is a balancing of rights as life outweighs privacy, but health and life of the woman outweighs life of fetus after that point. Kennedy is saying, in this case, viability is no longer the standard, the trimester system is (which strikes me as pretty odd and weak). The nature of when the birth process begins and what constitutes "born" under the law would probably have been a better legal argument, thus the fetus could have citizenship rights bestowed upon it at that point.

I still think the major point here was to set future precedent for state law, and it's pretty clear the court is reaffirming that Casey does give the right to the states to limit second trimester abortions, so long as there is a viable alternative and it doesn't place an undue burden on the woman, which to me seems perfectly fair. I also think, by that reading, that if a state enacts a similar ban, and then also tries to ban one of the other procedures mentioned, by the reading of this case the second ban would be struck down not because of the nature of the method, but because of the lack of alternatives it would create.

And as for the law, I don't think it is going to last regardless of Congress. I'm pretty sure it will be appealed on the grounds of Congress exceeding their authority, and will be struck down by a wide margin. The point was, without that appeal heard in this case, the court had a chance to revisit Stenberg and Casey, clarify them for the states, before next time striking down the federal ban. If that's the case, both sides win pretty big, as the left will almost guarantee there will never be any federal abortion bans (and 20 or so states will always keep it legal) and make it a critical issue in swing states, while the right can make gains in various red states.

Posted by: Michael | April 19, 2007 06:52 PM

If citizenship (or more broadly, personhood) were bestowed upon an unborn fetus, regardless of its stage of development, wouldn't an inherent conflict of interest be created? It would seem to me that every sexually active woman, from the moment she ovulated every month, would have to have a guardian ad litem appointed to represent the interests of the potential "person" she might be hosting within her body.

Can I go skydiving during the second half of my menstrual cycle? Can I have a glass of wine? Can I seek medical treatment for anything other than a possible pregnancy? Who decides--me or the guardian of my unborn "person"?

Posted by: Abby | April 19, 2007 09:48 PM

I have been trying to understand the reasoning of Justice Kennedy and just can't make any sense out of it at all. Each time I re-read it, I am more confused than ever in trying to find a logical answer.

Posted by: lylepink | April 19, 2007 10:26 PM

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