Gonzales v. Carhart-- Three Comments

JB

I shall have more to say about the Supreme Court's partial birth abortion decision later on, but in the meantime, there are three things worth noting in today's Gonzales v. Carhart opinion.

The first is that the Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

The second point worth noting is that Justice Kennedy invokes what has become the new rhetoric of abortion opponents-- the notion that women often regret abortions and that they are deceived by doctors into having them. This new (post Casey) line of argument arose in the mid 90s when abortion opponents realized that arguing primarily about the status of the fetus would not convince a majority of the public. Instead pro-life advocates sought to argue that abortion hurts women as well as fetuses. The new anti-abortion rhetoric attempts to demonstrate that few women in their right minds, who really understand what abortion involved, would defy their natural love for their children and consent to an abortion, much less seek to procure one. It tries to perform a rhetorical jujitsu move on the idea of choice, by suggesting-- without any empirical evidence, that women don't really choose abortions, and that to have an abortion is actually a violation of their "true" choices.

Elements of this new anti-abortion rhetoric appear in Justice Kennedy's argument that because of a mother's natural bond of love for her child, some women would not have abortions if they knew about the intact D&E process. Therefore Congress may ban the procedure entirely. But there are a couple of non-sequiturs here. First, the appropriate remedy for the problem Justice Kennedy identifies would be informing the women about the nature of intact D&E, not preventing the women from choosing whether to undergo the procedure. Second, if a woman did not want to undergo intact D&E, she might still choose to abort the fetus because, as the Court itself point out, the doctor could still perform regular D&E or terminate the fetus by injection before withdrawing it intact. In that case, "the bond of love the mother has for her child," would not prevent the mother from ending the fetus's life. In fact, the argument about mother love seems to be a makeweight; it seems to involve the claim that Congress knows better than women do about what they would choose in certain situations. The law forecloses choice rather than informing it. As Justice Ginsburg points out in her dissent, this is the very sort of paternalism about women ability to make decisions about their reproductive lives that the right to abortion seeks to counter. Justice Kennedy's use of this new form of anti-abortion rhetoric reveals that this particular line of opposition to abortion, at least, is premised on the notion that women don't really know or really understand what they want when they seek abortions.

The third interesting feature of Gonzales is that it retreats from Casey by requiring an as-applied challenge for those cases in which intact D&E is a safer procedure. The problem with this holding is that it allows legislatures to pass laws that have unconstitutional elements while placing the burden on individual women to raise as-applied challenges to each of these provisions. Given the time and expense of bringing such challenges, it is likely that they will be quite difficult to raise, and so many unconstitutional features of abortion laws will continue on the books for some time. The problem extends well beyond the issues in Gonzales-- it applies to many different types of abortion regulations that previously could have been challenged under Casey's undue burden standard.

Here is what I said back in 2005 when this issue was first raised in the Ayotte case:

The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

The Court fudged this issue in Ayotte, but it has taken up the invitation in Gonzales. And the rule that Justice Kennedy seems to have crafted has most of the disadvantages I pointed out back in 2005.
Posted 1:55 PM by JB [link]