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Roundup on the Supremes’ Partial-Birth Abortion Decision
As we have already discussed a little, the Supremes upheld the Partial-Birth Abortion Ban Act in yesterday’s Gonzales v. Carhart decision. Unsurprisingly, there has been quite a bit of discussion and commentary on the case, with much more sure to come. Here are some of the things that caught my eye last night:
President Bush released a statement trying to hide his glee: “Today’s decision affirms that the Constitution does not stand in the way of the people’s representatives enacting laws reflecting the compassion and humanity of America.” Right. Because Bush is really concerned about the Constitution standing in the way of things?
Meanwhile, Columbia Professor Michael Dorf, who was a co-author of one of the amicus briefs filed in this case, takes issue with the fact that the decision doesn’t satisfactorily address the “core issue: whether a government (state or federal) can ban what many doctors think is the safest way to perform a medical procedure.” Dorf doesn’t think Justice Kennedy’s reliance on “well, there’s medical disagreement on the matter” rules the day. Which ties into a point raised by Steph Tai over at Concurring Opinions, who looks at the issue of scientific and medical evidence and says she would’ve liked to have seen more guidance in terms of knowing how much uncertainty is too much uncertainty: “How much medical disagreement is necessarily [sic] to overcome a Congressional finding? If the bar is too high — which it could be, given how one could argue that all of science is ‘uncertain’ and ‘unstable’ to some extent — then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet ‘uncertain’ risks.”
At SCOTUSblog, Lyle Denniston calls the decision a “sweeping - and only barely qualified - victory to the federal government and [] other opponents of abortion.” Orin Kerr, a law professor over at GW, notes how some folks like Denniston are looking at this as a broad ruling, but he thinks it’s actually rather narrow because, while the decision upheld the ban, the Court didn’t overrule Stenberg and it left the door open for an as-applied challenge to the ban at some later time.
Denniston also points out that neither Chief Justice Johnny nor Alito joined Justice Thomas’ dissent, where he and the Scalia reiterated their belief that there’s no basis for any abortion rights in the Constitution. Denniston says this “does not necessarily mean Roberts and Alito disagree with that view, but perhaps meant only that they did not believe it needed to be said at this point.” In other words, maybe they’re holding their cards a bit close to the vest until the time is right for them to slam the door shut on Roe? Time will tell on that one, I suppose (Professor Dorf agrees, noting that Roberts and Alito basically “remain in the closet about whether they would vote to overrule Roe and Casey if faced with that question directly”).
For a momentary inconsequential side-track, David Lat takes a look at a math comment in one of the footnotes of Ginsburg’s dissent.
Speaking of Ginsburg’s dissent, she delivered a live oral summary of it in the court yesterday, prior to the written decision being handed out, and you can read the transcript over at the Legal Times. Ginsburg concluded her statement by saying:
In candor, the Partial-Birth Abortion Ban Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.
While regular readers know that I’m mostly a lefty liberal, I find it nice to sometimes take a look at what folks on the other side of the aisle are thinking. Over at the Mirror of Justice (“a blog dedicated to the development of Catholic legal theory”), Rick Garnett thinks that the decision “respects the views of the overwhelming number of Americans — pro-life and pro-choice alike — who believe that partial-birth-abortion is a procedure that a decent and humane society need not permit. In this sense, the decision is consistent with the view that federal judges should not take it on themselves to remove controversial debates from the arena of democracy.” However, he doesn’t see this as a crowning victory, taking Orin Kerr’s side of the argument in the broad/narrow debate, viewing the decision as being too narrow. In fact, Garnett is troubled that the decision “will be hailed (or lamented) as a ‘huge win’ for the pro-life side of the debate,” but ultimately says it’s a “step in the right direction.”
Paul Linton, special counsel for the Thomas More Society (which filed an amicus brief supporting the government) says that this decision “is welcome,” but he agrees with Garnett: “neither supporters nor opponents of abortion should read too much into the Court’s decision … [because it] clearly left the door open to a pre-enforcement, ‘as-applied’ challenge.” He also thinks the decision “is likely to have little effect on abortion practice.”
The Center for Reproductive Rights would obviously beg to differ, calling the decision a “stunning reversal” as the Supremes rule “against women’s health, in favor of abortion restrictions” and give states “a green light to criminalize safe, medically-necessary abortions as early as 12 to 15 weeks in pregnancy.”
Meanwhile, Adam B at the Daily Kos sums it all up very nicely (for my tastes, at least): “Welcome to George Bush’s Court.”
The headline of the day goes, unsurprisingly, to Slate’s Dahlia Lithwick: “Father Knows Best - Dr. Kennedy’s Magic Prescription for Indecisive Women.” Lithwick says that Kennedy’s decision “is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconsistent Female.”
And finally, going back to SCOTUSblog, Denniston provides some interesting commentary on consequences of this case and what it could all mean. Among many other things, he thinks we’ll see state legislators get more active in trying to find ways to whittle away abortion rights, but he doesn’t think there is an “early prospect” of Roe being overturned.
