Law: April 2007 Archives

For my initial thoughts on the recent Supreme Court decision Gonzales v. Carhart, see here. Since that post, I've had a chance to see a lot more of the commentary that's ensued, and I wanted to highlight a couple responses I've seen to the aftermath, first on the claim that this is a religiously-motivated decision and second on the actual constitutional issue at stake. The first point comes from Rick Garnett here, in response to a post by Geoffrey Stone at the Huffington Post. The key quote from Stone is:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is "immoral" and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman "to determine her life's course" is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith.

Now consider Garnett's response:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
As I've argued many times in the past (see especially here), there is no rational basis for the claim that pro-life convictions are mere religious dogma, because such assertions ignore a fairly rich philosophical framework that often lies behind such convictions. But what's particularly silly about Stone's claim is that one of the five justices in the majority in this case voted to uphold the basic right to abortion in 1992 and insists in this opinion that he sees himself still affirming that. If he's spouting forth Catholic doctrine in the guise of a legal opinion, how did he end up affirming what his church denies? Still worse, if Stone is serious about this he should worry about Kennedy's votes on capital punishment cases, since the Roman Catholic Church opposes the death penalty. I haven't heard anyone complaining about the church-state line being transgressed there. Even worse, the mainline Protestant denominations and Reform Judaism congregations of the four minority justices are officially pro-choice, and I don't see anyone complaining about their violations of church and state in voting in a way their religion happens to support.

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.

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