Commentary: Kennedy vote in play on abortion
Justice Anthony M. Kennedy, proceeding calmly, cautiously and analytically, left the clear impression on Wednesday that his vote may be available to strike down Congress’ first attempt to impose a nationwide ban on an abortion procedure — even though the procedure at issue is one that Kennedy has suggested is morally repugnant. In two hours of argument on abortion procedures, overwhelmingly dominated by analysis of medical procedures and barely touching basic separation-of-powers questions, Kennedy dropped suggestive hints one after the other that he is troubled by what Congress attempted in the Partial-Birth Abortion Ban Act of 2003.
His vote — potentially decisive because four Justices who had voted in 2000 to strike down a somewhat similar state ban seemed unlikely to find the federal ban to be different in a constitutionally significant way — very likely will depend in the end on how opinions are drafted and negotiated along the way toward decisions in the cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382). But, at least during oral argument, Kennedy seemed unpersuaded that Congress either had succeeded in making its ban narrow enough to be upheld without disturbing the core right to abortion, or that, if upheld as written, it could ever be challenged at a time when such a ban would genuinely threaten the health of pregnant women seeking abortions.
The Court proceeded with the case without allowing itself or counsel to be diverted by a brief but noisy outburst from a spectator, who shouted out against abortion and warned the Court of repentance before he was hustled out. Chief Justice John G. Roberts, Jr., reacted with some humor, telling the lawyer at the podium at the time that the Court would allow her an extra 30 seconds to make up for the brief pause. (The spectator, identified as Rives Miller Grogan of Los Angeles, was arrested under a federal law against disruptions in the Supreme Court or on its grounds and for resisting arrest, and was turned over to local authorities for possible prosecution.)
Justice Clarence Thomas did not take part in the hearing; Roberts said at the outset that Thomas was absent “due to illness” — apparently not serious — but would join in the ruling on the basis of the briefs and the hearing record. Justice Samuel A. Alito, Jr., was on the bench throughout, but asked no questions and made no comments. Justice Antonin Scalia, one of the Court’s most aggressive foes of abortion, played only a minor role, offering a couple of sarcastic comments but posing no questions.
Because of the Court’s prior vote in Stenberg v. Carhart six years ago and the change in membership since, it has been widely assumed that Kennedy would hold the decisive vote this time — even if the new Chief Justice and Justice Alito were to vote to uphold the federal ban. That, of course, made Kennedy the focus of attention on Wednesday. (The Chief Justice, though framing most of his several questions in a neutral way, appeared to be mainly searching for arguments to sustain the federal law, perhaps on the premise that it was different from the law nullified in Stenberg — one of the government’s main defenses of the ban.)
Kennedy’s fervently expressed dissent in Stenberg had cast some doubt over whether he would ever be prepared to vote against a ban. But, on Wednesday, with not the slightest suggestion of emotion, he weighed in frequently and dispassionately on the medical debate — for which, he indicated, he had read all of the hundreds of pages of medical testimony in the lower court trials of the two cases.
No sooner had Solicitor General Paul D. Clement began his defense of the federal law than the hearing turned to the medical issues that the ban raises. Justice Ruth Bader Ginsburg asked whether the procedures banned were basically the same as those the Court had protected in Stenberg. Clement said there was “one very important difference” — the procedure at issue ini 2000 involved a doctor’s move to end the fetus’ life inside the woman’s uterus, while the one Congress banned involved “fetal demise” when the “fetus was halfway out of the mother’s body.” It would be a theme the Solicitor General would stress throughout, hoping to persuade the Court that the federal law was noticeably narrower than the one struck down previously.
When Clement soon raised the dreadful spectre of “infanticide,” Ginsburg reminded him: “We are not talking about whether any fetus will be preserved by this legislation. We are only talking about the method.” Any talk of “infanticide,” she suggested, would be “beside the point.” Clement retorted that “that trivializes Congress’ concern about fetal life.”
Justice Stephen G. Breyer, the author of the main opinion in Stenberg, also sought to focus the argument on medical method and away from issues of actual “birth.” He even offered what sounded like it might be a compromise way to resolve this controversy: the Court would bar enforcement of the federal ban, but only when “appropriate medical opinion finds it necessary to preserve [the woman's] health. If Congress is right, that is never medically necessary, then there could be no such use, and no problem; if Congress was wsrong, then it could be used.” Clement resisted that approach, saying it would only clear the way for doctors to perform all abortions, if they chose, with external “fetal demise.”
It was at that point that Kennedy began questioning whether the ban could ever be challenged, if the Court were to uphold it and allow it to go into effect at least temporarily. The Justice suggested that, although reading all of the medical opinion in the case, he had tried unsuccessfully to imagine how a doctor could be able to come to court later to challenge the law as it affected that individual doctor or an individual patient.
In Kennedy’s questioning of the one of the abortion-rights attorneys in the case, Priscilla Smith of New York, his most telling focus was on the issue of whether a ban on the procedure targeted by Congress would leave open any alternatives. He tried to find out how often the procedure was used, whether it was used only in medically necessary situations or whether it was purely “elective,” and whether hospitals would be available for the performance of the procedure if it was medically necessary.
He also focused on the difficulty of defining when a doctor intended to cause “fetal demise” outside the woman’s body — the only form of intent that the Solicitor General had argued would be criminalized under the ban.
While he made it clear he was uncomfortable with any suggestion that the Constitution allowed a doctor to use whatever procedure he thought was necessary, without any legislative restriction, he did not appear to be suggesting that that was what was being advocated in these cases.
In the second argument, with Clement appearing opposite Eve C. Gartner of New York, Kennedy joined Breyer in questioning how the Court would know what a “significant risk” would be to women’s health if the ban were left intact. He suggested — in a point made by the ban’s opponents — that there could well be risks if doctors were not allowed to perform external “fetal demise” for a woman who was suffering from cancer, and thus had to have that procedure down outside the uterus.
Coming back to the doctor’s intent issue, he also pressed Clement on how to define when a doctor’s choice of procedure with a given patient might violate the ban. When questioning Gartner, Kennedy seemed puzzled about the way Clement had defined the issue in the government’s effort to limit the seeming reach of the ban. He also brought up with Gartner his questions about whether there could ever be a challenge to the ban once it had been allowed to go into effect.
The two cases involved a wide range of issues about the relationship between the Court and Congress in defining constitutional rights, or exceptions to them, and about Congress’ authority to regulate medical practice, but neither of those lines of inquiry got any more than fleeting — and unrevealing — mention.
I am generally pro-choice, but this procedure, partial-birth abortion, is so grisly and so awful that it will leave a stain on the Supreme Court if it strikes down the statute prohibiting it.
The idea that a doctor can perform a late-term partial-birth abortion just because one idiosyncratic doctor thinks that it will aid the patient’s “emotional health” (it’s easy for doctors to just declare anyone who wants a partial-birth abortion to be suffering from “depression”) — as Stenberg v. Carhart allows — is simply disgraceful.
Every other constitutional right, aside from abortion, has common sense limits. You can’t shout fire in a crowded movie theater, even though that involves speech, because freedom of speech is not absolute. Similarly, you can’t wait until after the filing deadline to become a candidate, even though the right to run for office is a liberty interest protected by the First Amendment.
Thus, constitutional rights do not excuse delay and failure to comply with reasonable time limits on the exercise of those rights.
Yet, under Stenberg v. Carhart, you can delay until the 8th month of pregnancy, and then get a partial-birth abortion, based on nothing more than a nebulous effect on your “emotional health.”
There is no other area of constitutional rights where otherwise valid state regulations have to be waived for the sake of “emotional health.”
The court’s abortion jurisprudence under Stenberg v. Carhart is thus a bizarre anomaly.
All valid state regulations adversely affect the emotional health of at least some people who passionately oppose them.
People can’t engage in unprotected categories of speech, just because desisting from doing so will frustrate them and affect their emotional health.
People can’t avoid paying child support for children they were tricked into parenting, simply because doing so will impoverish them and adversely affect their emotional or physical health, even though child-bearing decisions are part of the same unenumerated right to privacy that gave rise to the Court’s abortion jurisprudence.
People can’t avoid paying taxes for causes that offend them, even if it makes them so angry it affects their emotional health.
Only in the abortion context does the most minimal state regulation, that does not unreasonably restrict the right in question, get deemed invalid by the courts just because it has some de minimis affect on someone’s emotional health.
That makes no sense at all.
Comment by Hans Bader — November 8, 2006 @ 3:21 pm
“I am generally pro-choice, but this procedure, partial-birth abortion, is so grisly and so awful that it will leave a stain on the Supreme Court if it strikes down the statute prohibiting it.”
How is this any more awful than any other form of abortion? Is sucking a fetus through a vacuum pump any better, or cutting it up in the uterus through a D&E procedure? Call it what you want (say, “fetal demise”), abortion is awful – and not because it is grisly, since we (most of us) have no moral problem dismembering cows for food, which I hear is quite a disgusting process. Abortion pangs the conscience because it is *human beings* getting killed. I don’t think the positions of being pro-choice and against partial-birth can be reconciled.
Comment by Ben Kennedy — November 8, 2006 @ 5:45 pm
Yes, you can reconcile being pro-choice and being against partial-birth abortion, just as you can reconcile being pro-free-speech and being against obscenity.
It just reflects the fact that belief in a right does not mean that the right can be extended to a ridiculous extreme.
An early-term abortion is very different from a late-term abortion.
And procedures that gratuitously inflict pain or blur the boundary between abortion and infanticide are quite different from procedures that do not.
Comment by Hans Bader — November 9, 2006 @ 12:55 pm
I think Ben is right. A human being is a human being. If we protect infants we have to protect fetuses, too. You cannot make distinctions. If partial-birth abortion is bad, then all abortion is bad, just as if invidious discrimination is bad, then affirmative action is bad. Equal protection means equal protection.
Comment by Jacques McKenzie — November 9, 2006 @ 1:29 pm
“An early-term abortion is very different from a late-term abortion.
And procedures that gratuitously inflict pain or blur the boundary between abortion and infanticide are quite different from procedures that do not.”
How is dismembering a fetus in the womb really any different that partially delivering and killing it halfway though, or delivering it completely and letting it expire? Today, the first is legal Constitutionally protected abortion, the second you claim is a gruesome awful procedure, and the third is infanticide if there happens to be a crack medical team on standby that could potentially save the infant (it is “viable”).
The reality of the sitation is that you have a dead human being, and ironically, the most humane and safe way of achieving “fetal demise” may be to complete the delivery before killing the fetus/infant – this was the thrust of some of the Chief Justice’s questions. There is no logical reason to draw legal distinctions regarding possesion of fundamental rights based on arbitrary time limits. Natural rights are based on our human nature.
Comment by Ben Kennedy — November 9, 2006 @ 3:06 pm
Ben Kennedy makes an interesting underinclusiveness argument.
But the fact that other unjustifiable late-term abortions should also be banned is not a reason to permit partial-birth abortion.
Underinclusiveness is not generally a basis for invalidating a law (at least outside the First Amendment and race/sex/religion discrimination context), since a legislature can proceed one step at a time, first prohibiting one evil and then another.
Although Ben reprints my comment that “An early-term abortion is very different from a late-term abortion,” he doesn’t explicitly take issue with it.
The distinction between early-term and late-term abortions is consistent with both common sense and the trimester framework recognized in Roe v. Wade.
Terminating a two-week old embryo that has no brain and no ability to feel pain is very different that killing a viable nine-month old fetus that can feel pain and is approaching imminent birth.
By giving a green light to killing of the latter, by allowing late-term babies to be killed by having their brains sucked out just because the abortion provider (who receives financial compensation for performing the abortion) claims that killing the baby will promote the mother’s “emotional health,” Stenberg v. Carhart drained Roe v. Wade’s trimester framework of any meaning.
Thanks to Carhart, even viable infants can be killed in a gruesome fashion, even in the third trimester, in which fetal protection was supposed to be permitted under Roe v. Wade’s trimester framework.
The court should put meaning back into Roe v. Wade’s trimester framework by overruling rulings like Stenberg v. Carhart that permit late term abortions just because a financially-interested abortion provider thinks (or claims to think) that the abortion will benefit a woman’s nebulously-defined “emotional health.”
A good first step to doing that would be to uphold the federal ban on partial-birth abortion.
Comment by Hans Bader — November 9, 2006 @ 3:51 pm
Underinclusiveness is not generally a basis for invalidating a law (at least outside the First Amendment and race/sex/religion discrimination context), since a legislature can proceed one step at a time, first prohibiting one evil and then another.
Human nature is human nature. Either fetuses are human beings or they are not. Any failure to recognize their personhood is a moral and legal flaw. Apparently, to Hans Bader, equal does not equal equal.
Comment by Jacques McKenzie — November 9, 2006 @ 4:11 pm
“Although Ben reprints my comment that ‘An early-term abortion is very different from a late-term abortion,’ he doesn’t explicitly take issue with it.
The distinction between early-term and late-term abortions is consistent with both common sense and the trimester framework recognized in Roe v. Wade.
Terminating a two-week old embryo that has no brain and no ability to feel pain is very different that killing a viable nine-month old fetus that can feel pain and is approaching imminent birth.”
That is the big issue. I see no substantial difference between killing the two from a moral standpoint. Both are less developed than an adult chimpanzee, which does not have the same kind of fundamental rights we ascribe human beings. The reason we do not place children in zoos is because they have human rights, rooted in a natural law (whether it be derived from religious or secular sources). It is the fundamental *humanity* of a born infant or a nine-month fetus that justifies the existence of human rights and legal protection. Having a brain and being self-aware are the essence of being human, but not having them *yet* does not sever one from their humanity. Neither a 2 week embryo or a 1 day infant can yet claim the promise of full humanity, yet killing one is murder and the other is not – that is inconsistent and defies common sense.
Comment by Ben Kennedy — November 9, 2006 @ 4:32 pm
“Apparently, to Hans Bader, equal does not equal equal.”
Most people who don’t think the unborn are not equal is because they have made an a priori assumption that they are not equal. I used to feel the same way as Hans, the tipping point came when I took an unbiased look at my assumptions. I could not get past the notion that the mere passage of time or division of cells was enough to transform “non-persons” into “persons” – it just doesn’t make sense. The clincher was actually reading Roe vs Wade, which implies that killing a 9-month fetus minutes from birth would have no federal Constituional implications.
Comment by Ben Kennedy — November 9, 2006 @ 5:48 pm
Contrary to Ben, I don’t see why “the mere passage of time” can’t increase the rights of the fetus, so that women can enjoy the right to terminate a pregnancy in its early stages (thus enabling them to control their reproductive destiny), but not later when the fetus has begun to acquire sentient characteristics (when the sanctity of human life must take precedence).
“The mere passage of time” commonly increases one’s rights and responsibilities. You can’t drink until you are 21, and you can’t vote until you are 18. See also Roper v. Simmons (2005) (imposing age-based limit on death penalty).
Those distinctions may seem arbitrary at the margins — some 19 year olds aren’t mature enough to be sensible voters, and many 17 year olds are — but they reflect basic common sense.
The fact that not everyone matures at the same rate is no reason to get rid of age limits for voting and give even 2-year olds the right to vote, just as the fact that a 2-day old embryo has the same DNA as an 8-month old fetus is no reason to give the former the same right-to-be-born over the mother’s wishes as the latter, when the latter is vastly more developed than the former.
Common sense produces cut-offs (like the requirement that people be 18 or over to vote) that look arbitrary at the ages, but are nevertheless sensible from a distance (obviously, a 2 year old should not be allowed to vote, and a 30 year old should be, even though 17 year olds and 19 year olds aren’t very different).
Thus, it makes perfect sense to support freedom of choice in the first trimester, when the embryo has not developed much at all.
And it makes perfect sense to ban abortion in the third trimester, where the fetus more closely resembles a newborn than it does an embryo (unless the mother’s physical health is endangered, not just some self-serving finding by the abortion provider that the patient’s “emotional health” would be allegedly affected by carrying a normal pregnancy to term).
Comment by Hans Bader — November 10, 2006 @ 12:07 pm
The point of my above comments is that there is nothing inconsistent with being pro-choice and voting to uphold the federal law banning partial-birth abortion, which should in fact be upheld as perfectly constitutional.
Comment by Hans Bader — November 10, 2006 @ 12:17 pm
“I could not get past the notion that the mere passage of time or division of cells was enough to transform “non-persons” into “persons” – it just doesn’t make sense.”
I think Ben makes a viable point here. It is difficult if not impossible to determine at what point in time a fetus is to be considered a “person.” However, if we operate under the assumption that fetuses must be protected because they all possess the potential to eventually have a brain and be self aware, it becomes increasingly difficult to, at the same time, determine at what point that potential is no longer worth protecting (this difficulty in many ways parallels the problem Ben raises with being able to determine at what point a fetus is to be considered a “person”). Around 10-15% of pregnancies end in miscarriages or stillbirths, and while the percentage of successful conception after intercourse is much smaller than the chance that a fetus will survive pregnancy, it must be accepted under this framework that this potential must be defended. As a result, if you are pro-life you must also be prepared to coherently address why you are not anti-contraception.
Comment by Aaron Stemplewicz — November 10, 2006 @ 12:17 pm
Hans Bader: The point of my above comments is that there is nothing inconsistent with being pro-choice and voting to uphold the federal law banning partial-birth abortion, which should in fact be upheld as perfectly constitutional.
Boy, Hans Bader sure is tying himself up in knots trying to promote inequality through his interpretation of “equal protection of the laws”.
Comment by Jacques McKenzie — November 10, 2006 @ 12:43 pm
“Common sense produces cut-offs (like the requirement that people be 18 or over to vote) that look arbitrary at the ages, but are nevertheless sensible from a distance (obviously, a 2 year old should not be allowed to vote, and a 30 year old should be, even though 17 year olds and 19 year olds aren’t very different).
Thus, it makes perfect sense to support freedom of choice in the first trimester, when the embryo has not developed much at all.
And it makes perfect sense to ban abortion in the third trimester, where the fetus more closely resembles a newborn than it does an embryo (unless the mother’s physical health is endangered, not just some self-serving finding by the abortion provider that the patient’s ‘emotional health’ would be allegedly affected by carrying a normal pregnancy to term).”
Arbitrary cutoffs make sense when it is simply impossible to make a decision on a case-by-case basis. An infant does not have capacity to vote, cannot drive, cannot consent to sex, etc, because they are very young. Therefore, certain rights are rightly delayed. However, it is not logical to delay the fundamental right to life on account of age. We all agree (for the most part) killing a born infant is a crime. I fail to see why stage of life development is a criteria to determine when this particular right should be applied. “Common sense”, as you say, suggests that all pre-conscious humans should have the same right to life. Is there any real logical different between having a brain but being not self-aware (like an infant) or not having yet developed a brain (like a fetus)? Does “common sense” suggest that a viable, 9 month fetus is a Constitional non-entity but a infant born at 8 months is? “Viability” is a measure of the state of our current medical techonology, not a property of the fetus – does it make sense to say that the rights of the fetus depend on our ability to keep them alive outside the womb?
Hans, the fundamental point is that it is impossible to uphold the right to life of infants without upholding the rights of the lesser-developed unborn, given that both are far less developed than a born human. The only way for the pro-choice side to get around this problem is to claim that the unborn are not human beings (which they used to do circa 1972), which defies science, logic, and common sense. Be honest with yourself about this – at one point in your life you were a fetus. At that time, did you not have a natural right to grow into who you are? Abortion is something that sometimes is necessary, but it should be viewed as something that invloves a conflict of rights between the pregnant woman (who, in this day and age, may not be the biological mother) and the unborn fetus.
Comment by Ben Kennedy — November 10, 2006 @ 12:50 pm
“Around 10-15% of pregnancies end in miscarriages or stillbirths, and while the percentage of successful conception after intercourse is much smaller than the chance that a fetus will survive pregnancy, it must be accepted under this framework that this potential must be defended. As a result, if you are pro-life you must also be prepared to coherently address why you are not anti-contraception.”
I am not sure I understand your train of thought. Contraception is simply a way for sex to not result in conception, preventing the creation of a new human life. The pro-life argument speaks to human life after it has been created. People should be prefectly free to choice to not reproduce – they can abstain from sex, or use contraception. The only kind of contraception that is problematic is that that actually allows conception, but discourages implantation, e.g. the IUD.
When pregnancies end through miscarriage, it can be very tragic, but it is a natural process and a natural death for the unborn human. This is in stark contrast to induced abortion, which causes an unnatural death. There is no practical way to prevent miscarriage, so there are no additional steps to “protect” the unborn beyond not killing them in the first place.
Comment by Ben Kennedy — November 10, 2006 @ 1:09 pm
Ben your argument hinges on the sancitity and resulting defense of POTTENTIAL life/development. The point I was attempting to make was that if you enshrine POTENTIAL life you must be able to define where this POTENTIAL for life is no longer worthy of being protected. Does the potential for life stop at conception? If the answer is yes, then you must be able to explain why.
Comment by Aaron Stemplewicz — November 10, 2006 @ 1:33 pm
“Ben your argument hinges on the sancitity and resulting defense of POTTENTIAL life/development. The point I was attempting to make was that if you enshrine POTENTIAL life you must be able to define where this POTENTIAL for life is no longer worthy of being protected. Does the potential for life stop at conception? If the answer is yes, then you must be able to explain why.”
I don’t like the term “potential” due to the ambiguity of the term. It can either mean “capacity” or “possibility”. If an embryo is a “potential” human life by capacity of becoming a self-aware human, then an infant must fall into the same category. In fact, it is precisely this “potential” that is why killing an infant is just as wrong as killing an adult – killing equivalently biologically developed mammals is not morally equivalent. Plus, it’s not a sliding scale of “wrongness”, we don’t categorize murder based on the age of the victim.
The other definition of “potential” is “expressing possibility”. In that sense, a married couple may possibly have children, or not. It is a completely different issue than what is described above, which speaks to the intrinsic ability of any human life to grow into adults. A sperm and an ovum each on their own no capacity for becoming a self-aware human being, they are just cells that are part of a man or woman. Once they are brought togther (conception), the resuling totipent cell *does* have this capacity, it is human. The only scenarios for it not reaching self-awareness are that is dies naturally, or dies unnaturally. That is the bright line for defending and protecting life.
Comment by Ben Kennedy — November 10, 2006 @ 3:53 pm
Ben,
Hans has already conceded that the equal protection clause must be flexible enough to promote value-judgments that are essentially political. He just has different politics — and value-judgments — than you. He doesn’t stand for an equal protection clause that is strictly and consistently interpreted, just one that garners the results he favors. He’s an instrumentalist, like most good appellate litigators! (And he is a good appellate litigator.)
Comment by Jacques McKenzie — November 10, 2006 @ 10:15 pm