Thoughts on Gonzales v. Carhart

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I haven't had anything to say about the Supreme Court's upholding of the federal ban on partial-birth abortion in Gonzales v. Carhart, largely because a lot of what I've wanted to say would have taken a lot more time than I've had. But over the weekend I managed to put together some of my thoughts on the main issue.

It seems to me that the left-leaning are seeing this as a monumental move away from long-standing precedent. 1973's Roe v. Wade got it right in securing a right to abortion, was upheld in large part in 1992's Planned Parenthood v. Casey, and was applied accurately in 2000's Stenberg v. Carhart, when state bans on partial birth abortion were overturned. The right-leaning, on the other hand, are seeing it as a narrow ruling that makes a baby step toward possibly restricting abortion further, but it's just a small step, even if it's in the right direction. When all is said and done, I think both attitudes get something right but also get something important wrong.

It's true that this isn't much compared to what pro-lifers want, which is one psychological explanation for seeing it as a narrow ruling. It also actually is a narrow decision in one sense. The way Justice Kennedy words the opinion, it does not explicitly overturn any previous Supreme Court decision. It does not reconsider the right to abortion. It does not overturn the prior decision on state laws, which it still takes to be unconstitutional because they lack an exception for the life of the mother. It forms a distinction between this law and prior ones. Thus it seems from Justice Kennedy's opinion that nothing in the prior decisions would have had anything to say about had the law existed when those cases were decided.

But that picture isn't entirely true. Casey's famously vague "undue burden" standard has regularly been taken to include a health exception and not just a life exception. That's certainly how Stenberg took it. But then Kennedy hadn't signed on to the majority opinion in the latter case. He voted with the minority (i.e. with Chief Justice Rehnquist and Justices Scalia and Thomas). Jan Crawford Greenburg has a fascinating account of why. Apparently he thought Justice O'Connor had betrayed him by taking Casey in that direction. He didn't think he'd signed on to that when he switched his vote to join her in that case, thus putting her in the majority.

What we see now in this case is what he thought he was agreeing to in Casey. That's why he thinks this is fully in step with the Roe and Casey precedents. But it's not true that it doesn't overturn something in Carhart v. Stenberg. It overturns the requirement for a health exception, and that's quite significant, even if the majority opinion doesn't seem to recognize that it has done that.

The dominant leftward view of abortion precedents is that 1972's Roe v. Wade got it right in securing a right to abortion, was upheld in large part in Casey, and was applied accurately in 2001's Stenberg, when state bans on partial birth abortion were overturned. This is actually a very misleading portrait of what happened. It's true that Casey upheld the right Roe created, but it did it by overturning pretty much all of the original reasoning and by revising considerably how abortion restrictions could be viewed "constitutionally". Carhart v. Stenberg also, according to at least one justice who voted in the majority in Casey, goes way beyond simply applying Casey.

I should also note that this is the second abortion decision by the Roberts court that has taken things back in a direction more favorable to the pro-life side. It's the first with Justice Alito, but there was one unanimous decision after Chief Justice Roberts came on to the court but before Justice O'Connor was gone. In fact, she wrote the opinion. 2006's Ayotte v. Planned Parenthood was an extremely narrow ruling, but it was quite contrary to previous methods of dealing with abortion restrictions. Until that point, any law deemed unconstitutional because it didn't have an exception for the life or health of the mother had been simply overturned. This decision remanded the law back to a lower court to work with the legislature that passed it to adjust the law. Thus more sweeping abortion laws could be allowed to remain on the books provided that they were made somewhat less sweeping. Abortion restrictions thus came out more favored in that decision than they had previously, and Chief Justice Roberts managed to get all nine justices to sign on to the decision.

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