A Restrained View

Guest Blogger

Priscilla Smith

(Priscilla Smith represented Dr. Leroy Carhart in Gonzales v. Carhart on behalf of the Center for Reproductive Rights)

Some have described Gonzales v. Carhart as restrained and moderate. Michael Paulsen describes it as deserving “only” half a cheer. Advocates on both sides of the debate go to the extremes and rejoice (anti-abortion) or denounce (pro-choice). That some academics and journalists are more tempered than activists is, of course, no surprise. It happens all the time for a variety of reasons. But describing the opinion as “moderate” or a “small step” coupled with David Garrow’s oped in the Times last Saturday saying that the impact of the opinion relies on the “fortitude” of the physicians who are threatened with loss of license, jail, and civil suits under the law, annoys me almost as much as reading articles by those who say the impact of removing all federal constitutional protections for abortion will be small because only a “few” states will actually ban abortions entirely. See, e.g., Jeffrey Rosen, Worst Choice, New Republic, Feb. 24, 2003 (arguing that “pro-life legislators . . . would themselves think long and hard before pulling the trigger to overturn Roe” and that “even if a handful of state legislatures did pass restrictions on first-term abortions,” the political consequences would be beneficial for the pro-choice movement). Cf. What if Roe Fell?, http://www.reproductiverights.org/pdf/bo_whatifroefell.pdf at 1 (Center for Reproductive Rights publication providing a state-by-state guide to the impact of a Roe reversal.) Am I really just an alarmist? Does it really matter?

Full disclosure is required. I argued, and was lead trial counsel in, Gonzales v. Carhart on behalf of the physicians and their patients and until recently was the Director of the Domestic Legal Program at the Center for Reproductive Rights. In other words, I am a practitioner. Worse yet, I am an “advocate,” an apparent insult that was used by one pundit to discredit my letter responding, quite soberly I thought, to his article. So be it. (Is pundit an insult?) But I also live a rather sedate life. I’m a homeowner, a mom of two incredible kids whose “bonds of love” couldn’t be stronger, and I drive a station wagon. So what follows is, I think, a rather restrained view of the opinion, after giving a week to let it sink in and taking Michael Paulsen’s challenge seriously. Professor Paulsen, I’m afraid I may not add the “hooray” to your “hip hip,” but that’s because you, like the pundits described above, seem to think that only allowing bans on abortion or at least measures that would prevent some women from obtaining abortions would really be a major step forward (or backward depending on your view). Am I wrong? At least, what follows may cheer you up?

The restraint theme has also made me contemplate the impact of Justice Roberts here, whose fingerprints run through the opinion. Others have pointed out to me that Alito’s Casey dissent also foreshadowed the “new paternalism” as Jack Balkin calls it. More on that later. First, stare decisis. Good or bad as a doctrine, at the very least, the Court should acknowledge it is overruling precedent, especially when the Court takes the precedent’s dissent and makes it the majority opinion, as Justice Kennedy did here with his dissent (adding some lovely new justifications). Instead, the Court tries to pass off Stenberg’s holding as merely the respondents’ “interpretation” of Stenberg. The Court quotes Stenberg (with a bizarre attempt to distance the quote from Stenberg by quoting the respondents quoting Stenberg) as follows:

. . . relying on the Court’s opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception “if ‘substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.’” Brief for Respondents in No. 05-380, p. 19 (quoting 530 U.S. at 938) . . ..Stenberg has been interpreted to leave no margin of error for legislatures to act in the fact of medical uncertainty.

Slip op. at 36. Well, of course, this is not just an “interpretation” of Stenberg. It is the central holding of Stenberg, the very one that so angered Justice Kennedy in 2000.

The Stenberg Court held that some medical disagreement with the “substantial medical authority” that supported the medical necessity of a procedure counseled in favor of a health “exception” because it “signals the presence of risk, not its absence.” I used to call this the “tie goes to the woman” rule. The accusation Kennedy makes in Gonzales in response to this supposed erroneous “interpretation” of Stenberg -- that this rule allows one rogue physician to create uncertainty and thus a health exception -- he made in his dissent attacking the majority’s opinion in 2000. The majority even specifically responded in 2000 by pointing out that he was ignoring the requirement that there must be “substantial medical authority” in support of the procedure. I expected him to uphold the statute with a narrow and confusing interpretation but I didn’t expect such disingenuousness. Perhaps I’m just naïve.

Second, on banning abortions. Take heart Professor Paulsen. I believe that this law will in fact prevent some women from obtaining abortions. It remains of course to be seen how and if doctors can comply with the decision in light of the Court’s claim that doctors will still be able to perform non-intact D&Es. I won’t get too technical but just make one point here. Doctors must not intend when starting the procedure, the Court says, to remove the fetus intact or “largely intact” to one of the “anatomical landmarks” listed in the Act. (Contrary to popular belief, the Act is not limited to “intact” delivery). But, all the D&E providers testified that they always intend to deliver the fetus “as intact as possible.” The only difference between those the Court seems to view as intact providers and those it views as non-intact providers seems to be their relative success in delivery of a “relatively” intact fetus. Slip op. at 25-26. How often must a doctor be successful in performing the safest abortions with the fewest intrusions into the uterus before the doctor knows her intent could land her in jail? I received calls from young physicians whose hospitals were shying away from allowing them to perform early second trimester D&Es even when the law was enjoined. Now? It remains to be seen of course but many hospitals, not to mention physicians, will be intimidated by this vagueness, no matter their “fortitude.” Wouldn’t you? And believe me, abortion providers are a tough bunch. The scarcity of second trimester abortion providers reduces the numbers of abortions women obtain, just as does the ban on funding for abortions for low-income women. Hooray.

The decision also turns Casey inside out. Just one way is the Court’s statement that respondents’ case is doomed by their failure to establish that the law would “prohibit the vast majority of D&E abortions.” Slip op. at 26 (emphasis added). This is reminiscent of Alito’s 3d Circuit dissent in Casey which held that the plaintiffs had not established that enough women would be beaten by their husbands when they notified them they were obtaining abortions. The Supreme Court disagreed and held that it was enough to establish that women would be harmed in a “large fraction of the cases in which [the law] is relevant.” 505 U.S. at 895.

Anti-abortion conservatives should also be heartened by the Court’s rejection of the facial challenge after New Hampshire lost this issue unanimously just a year ago in Ayotte (and before that in Casey, etc.)? Facial challenge to the lack of a health component to a medical emergency exception okay there; facial challenge to the lack of any health exception at all (including no medical emergency exception) rejected here. This issue has been pressed by National Right to Life, et al., for many years because they see its importance and the difficulty pro-choice advocates will have in bringing cases one by one, if only because of the enormous resources it will require.

And Ayotte reminds me of another thing anti-abortion conservatives might feel good about. Here, the Court only “assumes” that the State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy,” pre-viability. Slip op. at 15. Isn’t this reminiscent of Ayotte, in which the Court refused to directly reaffirm the requirement that abortion restrictions must protect women’s health, saying only that “our precedents hold, that a State may not restrict access to abortions that are “ ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother,’” 126 S. Ct. 961, 967 (2006) (emphasis added). The Court then applied that rule and unanimously upheld the lower court’s determination that a health exception was necessary in that facial challenge. “Assuming” a rule is an even stronger way to avoid reaffirming past precedent, thus avoiding adding to Roe’s status as the dreaded “super-duper precedent.”

More soon on what all this means, Professor Paulsen’s discussion of state interests, on the loss of the, until now, central requirement that a woman’s health be the doctor’s paramount concern, significant and marginal risks to health, and Roberts’ influence.
Posted 3:23 PM by Guest Blogger [link]