Partial Victory

Eastland, Terry

Partial Victory The Supreme Court defers to Congress. by Terry Eastland Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we...

...Kennedy said that where there is medical uncertainty, as he concluded there is here on the question of whether the ban creates significant health risks for a pregnant woman, Congress still may legislate...
...Citing Casey in support of the proposition that "government may use its voice and its regulatory authority to show its profound respect for the life within the woman," and observing that Casey sought to correct post-Roe precedents that, in its own words, had "undervalued the State's interest in potential life," Kennedy wrote: "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn...
...Note that Ginsburg describes the Supreme Court as "differently composed" from the way it was in late 2005...
...Kennedy's opinion opens the door for further regulation of abortion...
...But a judiciary enforcing its expansive view of the abortion right announced in Roe v. Wade (1973) and reaffirmed in Planned Parenthood v. Casey (1992) opposed the state bans, with the Supreme Court, in the 2000 case of Stenberg v. Carhart, striking down Nebraska's by a vote of 5 to 4. Yes, the Stenberg Court was differently composed, with O'Connor in the majority...
...On that point, it's worth noting that Justices Clarence Thomas and Antonin Scalia, in a short concurrence, while reiterating their view that "the Court's abortion jurisprudence, including Casey and Roe . . . has no basis in the Constitution," also said that "the Court's opinion . . . accurately applies current jurisprudence," including Casey...
...Anthony Kennedy was one of the four dissenting justices in Stenberg...
...In Gonzales, challenges to the federal partial-birth abortion ban gave the (differently composed) Court an opportunity to overrule Stenberg...
...as early as the 20th week of pregnancy, and many of those newborns survive...
...Of course, only a Court of still different compositionówith more Republican appointeesómight finally withdraw the judiciary from policymaking in this deeply controversial area, and let the people decide what to do about it, through their duly elected representatives...
...Judgment about whether there are "well-defined instances" in which there should be a maternal health exception awaits an "as-applied challenge in a discrete case...
...Ginsburg knows that if O'Connor had not retired, or if O'Connor's replacement had been someone like David Souter or Stephen Breyer or herself, the Court would have ruled otherwise in Gonzales v. Carhart...
...Understandably, then, Democratic and Republican presidential candidates have responded to Gonzales, with the Democrats denouncing it and the Republicans saluting it...
...He quoted Casey: "Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose...
...That procedure remains quite available...
...Whether Kennedy's understanding of Casey can be sustained will depend, as Ginsburg's opinion reminds, on the Court's composition...
...Such a Court would have struck down the federal partial-birth abortion ban...
...In Stenberg, Kennedy could not accept that Roe and Casey compelled invalidation of the Nebraska law...
...by Terry Eastland Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis...
...As for the absence from the law of a maternal health exception, that doesn't, on its face, create a substantial obstacle either...
...It did not do that, but the Court's opinion, written by Kennedy, shrewdly assigned to the job by Chief Justice John Roberts, makes clear that legislatures do have authority to prohibit partial-birth abortion...
...Among the Republicans, Rudy Giuliani's reaction was the most terse: The Court, he said, had "reached the correct conclusion...
...States are now likely to pass new limitations on abortion, and doubtless they will one day be litigated up to the Supreme Court...
...That sentence comes near the end of Justice Ruth Gins-burg's dissent from last week's opinion by a five-member majority sustaining the Partial-Birth Abortion Ban Act, which Congress passed in 2003...
...This gruesome procedure seems so close to infanticide, the living baby lying there in plain view from the shoulders down, partially born and legs moving before those adult hands start their work, that a determined movement arose to outlaw it...
...The doctor pulls from the uterus the entire body save for the head, and then forces scissors into the skull and sucks out the brain tissue, thus collapsing the head and facilitating complete removal of the intact, deceased fetus, who may fairly be called a baby, since live births occur Terry Eastland is publisher of The Weekly Standard...
...Kennedy called attention to "a premise central" of the Court's conclusion in Casey, namely that "the government has a legitimate and substantial interest in preserving and promoting fetal life...
...His vote surprised some observers, since he had cowritten, with O'Connor and Souter, the joint opinion in Casey...
...And at that time its composition was different, for Samuel Alito had yet to succeed Sandra Day O'Connor...
...And that would have been a truly bad outcome, quite at oddsóand here is where Ginsburg is wrongówith the rule of law...
...Partial-birth abortion is a procedure used to kill fetuses of 20 to 24 weeks and sometimes older...
...Those who look to the Republicans as a bulwark of principled jurisprudence will no doubt hope that their eventual nominee is prepared to articulate why that conclusion is correct and to argue for the appointment of justices who will not read new rights into the Constitution, the original sin of Roe, and who, if they will not reverse dubious precedents, will at least apply them fairly, as Kennedy has done in Gonzales...
...She is right about that much...
...The law does establish an obstacle by outlawing a particular form of abortion, but the burden is not a substantial one, in Kennedy's judgment, since the law doesn't prohibit the most commonly used method of late-term abortion (known as dilation and extraction...
...Kennedy found that the federal ban on partial-birth abortion, crafted in ways to accommodate the Court's objections in Stenberg to Nebraska's ban, does not create "a substantial obstacle," also known, from Casey, as "an undue burden...
...While a different and Democratically composed Court would alter the application of Casey such that even the mild regulation of abortion represented by the federal partial-birth abortion law would have to be condemned, the current Court, one can hope, will maintain the Gonzales precedent...
...In the 1990s, more than 30 states have enacted bans on partial-birth abortion...
...That opinion declined to overrule Roe and naively (indeed pretentiously) offered itself as bringing to an end the national controversy over abortion, which Roe had done so much to trigger...

Vol. 12 • April 2007 • No. 31


 
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