Half a Cheer (or Less) for the Partial-Birth Abortion Decision

Michael Stokes Paulsen

Call me a glass-half-empty kind of guy: But as a pro-lifer and an opponent of the lawfulness of Roe v. Wade and Planned Parenthood v. Casey, I find almost nothing to cheer about in the Court's decision last week in Gonzales v. Carhart, upholding the federal partial-birth abortion statute. The result is right -- the federal statute is not unconstitutional -- but Justice Kennedy's majority opinion is truly horrible.

A warning about what comes next. I'm the resident guest conservative, and a pro-lifer. My tone will reflect my perspective. And I tend not to pull my punches. This will not be the usual Balkinization fare. But I challenge readers to consider it. One may well not agree with my political orientation on this issue. But is my legal analysis wrong?

1. The essence of the decision is that it is not unconstitutional to ban "partial-birth" abortion (inducing delivery past a certain "anatomical landmark" before killing the fetus by puncturing the skull with a scissors, vacuuming out the brains, collapsing the skull, then completing delivery of a dead, intact fetus) because there is always another way to kill the fetus before delivery, by dismemberment -- and there is a constitutional right to such dismemberment abortions. As long as an abortionist intends to commit a dismemberment abortion, rather than an intact-partial-delivery abortion, the federal law does not prohibit such action. And the Constitution of the United States affirmatively protects it.

There it is, on pages 25-26 of the slip opinion: "Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds." There is more to the opinion, of course. But this is the controlling rationale. The statute is constitutional because it does not ever prevent -- and only so long as it does not ever prevent -- any pre-viability abortion from occurring. The only prohibition is of a particular method of abortion. Indeed, Kennedy's opinion offers these words of encouragement to abortion innovators (p.30): "The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand."

And, the Court holds, the partial-birth ban is constitutional because it does not ever prevent even any post-viability abortion that is justified on the ground of protecting a woman's "health," if it can be shown in a particular case (that is, in an as-applied as opposed to a facial challenge) that the partial-birth method is required to preserve the mother's health. Moreover, once again, Kennedy insists that there is always another perfectly good way to kill a fetus. There it is on p. 34-35: "If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. * * * Here, the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right." No worries, mate. You can always get a dead human fetus. The federal partial-birth ban never really prohibits any abortion from occurring, so it is constitutional.

This latter holding is not without some consequence, and it is a meaningful change in the law. It will result in a detectable cut-back in the number of obtainable post-viability partial-birth-method abortions. And the practical difficulties of bringing as-applied challenges on health grounds might result in fewer post-viability abortions, period.

But this is peanuts. What counts as "health" for purposes of the Roe-Casey line's post-viability entitlement to abortion is essentially any physical, psychological, emotional, family-planning, economic or social reason that the woman and abortionist/doctor agree should count as a sufficient reason for having a late abortion. The federal law upheld in Gonzales v. Carhart does not prohibit post-viability abortions. It prohibits one post-viability (and pre-viability) abortion method. A late abortion may still be obtained for essentially any reason the woman chooses, including economics, social convenience, spite of a boy friend, and (probably) sex selection of children. Nothing in Gonzales v. Carhart changes any of that, or portends much if any change in the scope of "health" exceptions generally. And if accomplishing such a late-term abortion is shown, in a particular instance, actually to require the partial-birth method to further the woman's "health," and if Kennedy's suggested lethal injection before partial delivery won't do the trick, the Court still leaves open the prospect that such a challenge to the statute will succeed.

So this is a huge reverse for pro-choice forces, a horrible intrusion upon women's autonomy and doctor's medical judgment? This is a dramatic win for the pro-life movement, a foothold for reversing Roe? Be serious. The opinion is the smallest of possible steps in the pro-life direction. As noted in an earlier post, it does not even make the claim that Stenberg v. Carhart was wrongly decided and should be (and now is) overruled -- the type of statement that Kennedy was more than willing to make in his opinion for the Court in Lawrence v. Texas. Instead, the judgment in Gonzales rests on artificial distinctions of Stenberg, "anatomical landmark[s]" designated with sufficient specificity, on-its-face-versus-as-applied challenges, and the ultimate, unquestioned right to an abortion had by some other means, in any and all circumstances when it could have been had before. Gonzales v. Carhart changes essentially nothing. While one can understand the internal-dynamic political forces on the Court that led Scalia (and perhaps others) to hold their tongues (see my earlier posts), the language and "reasoning" of Kennedy's majority opinion is so horrible as probably not to have been worth the effort. It is a legal and moral disgrace. It is an embarrassment.

2. But not at all for the reasons cited by my Balkinization colleagues. Obviously, my reasons for objecting to the majority opinion are different from Jack Balkin's and Marty Lederman's (posted nearby). Jack thinks that the "big news" in the opinion is beefing up the state's ability to use "informed consent" to talk women out of abortions (and to prohibit some abortion methods) by confronting them with "information" designed to inform them out of making that choice. Both Jack and Marty cite the condescending tone with which Kennedy makes this point. I will return to the tone point presently (with which I largely agree). But first the substance.

I submit that nothing in Kennedy's opinion in Gonzales v. Carhart is, in substance, different from Planned Parenthood v. Casey in this regard. I regularly pose to my students hypotheticals concerning what exactly Casey regards as an "undue burden" and whether the state may attempt to talk women out of having abortions, as long as it does not ban the choice entirely. May it tell a woman that "abortion is the killing of a unique, human person living within you" as part of the "informed consent" process? May it require a (state-subsidized) ultrasound and present the woman with pictures of the (developed) "tissue" within her -- essentially forcing her to see what is living within her womb? May it require description of precisely what is entailed in various types of abortion procedures, in the same clinical yet raw terms as is contained in Supreme Court opinions? (Last week, I asked my students whether it would be an "undue burden" on the right to choose pre-viability abortions to ask women seeking abortions to read the Court's majority opinion in Stenberg. They thought it would . . . on grounds of length and tedium, but not in terms of actually restricting a woman's ability to exercise a choice for abortion.)

Casey is not perfectly clear as to how these hypotheticals would be answered, but Kennedy's reading of it in Gonzales v. Carhart -- as permitting statements of moral value judgments concerning abortion-- is not at all implausible. In substance, I do not think there is anything much new here. Perhaps it signals that Kennedy (and the four others) would uphold many such laws, including several of the hypotheticals in the preceding paragraph. Is this so terribly surprising? It seems like the line in the sand Kennedy has drawn for a number of years: The state may not prohibit abortion, but the state (and individuals) should be free to talk people out of abortions. (Hill v. Colorado, decided the same year as Stenberg, illustrates this line. Kennedy was in vehement dissent in both cases.) Gonzales v. Carhart adds some moralistic rhetoric about the value of the human fetus, and the possibility of regrets by the mother (which I discuss below), but that's it. (I leave for another day whether Kennedy's opinion here, reflecting the permissibility and even desirability of legislation reflecting moral value judgments concerning abortion, can be reconciled with his opinion in Lawrence, one core prop of which is that the state may not base legislation on moral value judgments concerning homosexual conduct.) I don't think this is big news.

All right, then, what about the tone? I suspect that liberals and conservatives can find some common ground here. Left and right alike can be appalled by the pomposity, vacuity, hypocrisy, vanity, and I-know-better-than-all-of-you wisdom of the typical Anthony Kennedy substantive due process opinion. Liberals' objections to Gonzales v. Carhart -- how arrogant and condescending! -- sound much like conservatives' objections to Casey and Lawrence, as far as tone goes.

But what Jack, Marty and others on the left seem to find so objectionable in Kennedy's Gonzales v. Carhart opinion is the idea that some or many women (and, I would add, some or many men) might really have no true idea of what, exactly, it is that they are doing when they decide to have an abortion and that, if they really knew, they might very well come to regret their decision deeply.

Yep. Sounds pretty darn condescending and superior-wisdom-ish, even downright paternalistic and moralistic -- a typical work of Kennedy vanity. The author, and his style, certainly tarnish the message.

But is it untrue? I doubt it. In terms of how many women (and men) do not know, fully, what they are doing, or might later come to regret the abortion decision, I suppose this is a factual, empirical question. But is it really the case that this is rarely or never the case? Surely, at least sometimes, and I suspect not entirely infrequently, "some women come to regret their choice to abort the infant life they once created and sustained." Kennedy's opinion recognizes the absence of "reliable data to measure the phenomenon," and cites anecdotal evidence from an amicus brief to support the proposition. Kennedy's opinion is not a model of analytic rigor, and it is burdened by paternalistic prose, but the point is sufficiently made: some people do not fully realize what abortion entails; some may come to regret the decision later; some might in retrospect wish they had known more; and this tends to support the legitimacy of legislation requiring provision of more information in advance.

I have no doubt that many (but not all) men and women do not fully grasp what abortion entails. The determined (or negligent) human mind can engage in truly heroic efforts to avoid confronting difficult realities, and abortion is a difficult reality. The prospect that abortion might be the intentional killing of living human beings -- children -- is an almost unbearable thing to contemplate. Surely most folks seriously considering abortion would rather not entertain such a thought. Similarly, I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. Confronting such information for the first time after having had an abortion no doubt could create feelings of intense regret. One need not be paternalistic to recognize that this is simple reality about the way human beings are, psychologically and emotionally.

And my Exhibit A for this is Justice Anthony Kennedy himself. After writing in Planned Parenthood v. Casey, Kennedy seems almost to have been shocked -- shocked! -- to find out, as though for the first time, in Stenberg v. Carhart, that abortion involves the destruction of what bears a striking resemblance, omigosh, to a very small human baby boy or girl. If only this had been explained to him more clearly earlier! Even now, Kennedy seems less concerned if the abortion can remain an "unseen" act. It seems to make a difference to him if the abortion can be accomplished, earlier in the pregnancy, by means of a vacuum tube. And (rather stupidly) it even seems to make a difference to him if a later abortion can be accomplished by dismemberment in the womb, rather than intact-partial-birth abortion. It is scarcely surprising that a man who himself is affected, partially, in his own inconsistent moral reasoning, by the what-is-seen-and-known / what-is-not-seen-or-known distinction should believe that some who contemplate abortion might actually have their decisions altered by fuller information about abortion.

What is the point of the ban on partial-birth abortion? Exactly what many committed pro-choice folks believe and fear: It is a calculated political (and legal) strategy by pro-life folks to force more people -- and more Supreme Court justices -- to face exactly what is involved in abortion and to provoke more cognitive dissonance and moral doubt for those on the pro-choice side. It is a device for holding people's eyes open to harsh realities in their harshest setting. Kennedy himself is an ironic illustration of the situation he describes: people often would prefer not to confront the reality of abortion, and might come to regret the decisions they have made. In Kennedy's words: "The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Kennedy might have been talking about himself, as much as women choosing abortion.

* * * * *

Gonzales v. Carhart thus merits, at most, half a cheer from the people who one would expect to be cheered by it. It does not overrule Stenberg. It upholds the federal law only because, and only to the extent that, it prohibits no abortions. It does add some rhetoric suggesting the Court will take seriously the power of government to jawbone against abortions. And it does reflect some recognition by a majority of justices of the awfulness of at least some abortion procedures (but without any suggestion that the result, rather than the method, might be awful). And it does so in a pompous, windy opinion by the Court's most pompous and windy justice.

Hip, hip.

Michael Stokes Paulsen
Posted 1:05 PM by Michael Stokes Paulsen [link]