Court upholds federal abortion ban
FINAL UPDATE 3:30 p.m.
Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called “partial-birth abortions.” The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents, saying the majority had not concealed its “hostility” to those decisions.
Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure — prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.
The Court said that it was upholding the law as written — that is, its facial language. It said that the lawsuits challenging the law faciallly should not have been allowed in court “in the first instance.” The proper way to make a challenge, if an abortion ban is claimed to harm a woman’s right to abortion, is through an as-applied claim, Kennedy wrote. His opinion said that courts could consider such claims “in discrete and well-defined instances” where “a condition has or is likely to occur in which the procedure prohibited by the Act must be used.”
Kennedy said the Court was assuming that the federal ban would be unconstitutional “if it subjected women to significant health risks.” He added, however, that “safe medical options are available…The Act allows…a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right.” His opinion noted that the Bush Administration “has acknowledged that pre-enforcement, as-applied challenges to the Act can be maintained.”
The majority said it had not “uncritically” deferred to Congress’ factual findings in passing the Partial-Birth Abortion Ban Act of 2003 — including its finding that the banned procedure was never medically necessary. “We do not in the circumstances here place dispositive weight on Congress’ findings,” Kennedy wrote, adding that the Court also was not accepting the Bush Administration argument that the law could be upheld on the basis of those findings alone. He added: “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Kennedy insisted — contrary to the dissenters’ angry claim — that the Court had not abandoned its prior abortion rulings. “The Court’s prececedents,” he said, “instruct that the Act can survive this facial attack.” He said there was “medical disagreement whether the Act’s prohibition would ever impose significant health risks on women” — a prohibition based in significant part on the finding that the procedure was never medically necessary.
But Kennedy said the Act could stand “when medical uncertainty persists…The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Quoting from a 1974 ruling (Marshall v. U.S.), the opinion said that “When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.”
Justice Ruth Bader Ginsburg, speaking in the courtroom for the dissenters, called the ruling “an alarming decision” that refuses “to take seriously” the Court’s 1992 decision in Planned Parenthood v. Casey reaffirming most of Roe v. Wade and its 2000 decision in Stenberg v. Carhart striking down a state partial-birth abortion law.
Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”
That final comment, concluding angry remarks that were delivered without an open display of emotion, clearly was a suggestion that the ruling might not survive new appointments to the Court — just as the arrival of Chief Justice John G. Roberts, Jr., and, especially, Justice Samuel A. Alito, Jr. — had led to the switch she claimed had come about this time. Ginsburg pointedly noted that the Court is “differently composed than it was when we last considered a restrictive abortion regulation” — in Stenberg in 2000.
In the course of her dissenting opinion, Ginsburg accused the majority of offering “flimsy and transparent justifications” for upholding the ban. She also denounced the Kennedy opinion for its use of “abortion doctor” to describe specialists who perform gynecological services, “unborn child” and “baby” to describe a fetus, and “preferences” based on “mere convenience” to describe the medical judgments of trained doctors. She also commented: “Ultimately, the Court admits that ‘moral concerns’ are at work, concerns that cdould yield prohibitions on any abortion.”
Joining Kennedy in the majority were the Chief Justice, and Justices Alito, Antonin Scalia and Clarence Thomas. With Ginsburg in dissent were Justices Stephen G. Breyer, David H. Souter and John Paul Stevens. Thus, Alito’s replacement of retired Justice Sandra Day O’Connor made the most difference in turning the Court around from its 2000 decision in the Stenberg case. O’Connor was in the majority in that decision, as were the four dissenters in this new decision.
Since the Chief Justice was in the majority in the new cases, he assigned the opinion-writing to Kennedy. Interestingly, neither the Chief Justice nor Justice Alito joined a brief separate opinion written by Justice Thomas and joined by Justice Scalia saying that they wanted to reiterate their view “that the Court’s abortion jurisprudence…has no basis in the Constitution.” That does not necessarily mean Roberts and Alito disagree with that view, but perhaps meant only that they did not believe it needed to be said at this point.
The ruling came in the consolidated cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382).
In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a “violent felony” for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Alito wrote for the majority. The voting produced an unusual array: with Alito in the majority were the Chief Justice and Justices Breyer, Kennedy and Souter, and with Ginsburg and Stevens joining a Scalia dissent. Thomas filed a separate dissent.
Note that neither Roberts nor Alito joined Thomas’s separate opinion.
Comment by Adam White — April 18, 2007 @ 10:34 am
Just finished reading Justice Ginsburg’s dissent. “Rule of law” … “overturning recent precedent” … “different composition of the Court.” She could have written a pretty good dissent in Lawrence v. Texas.
Comment by Taylor Reynolds — April 18, 2007 @ 11:23 am
Oh, my mistake. Justice Ginsburg was in the majority in Lawrence. Funny how that works.
Comment by Taylor Reynolds — April 18, 2007 @ 11:26 am
The “unborn child” comment from the dissent is interesting:
“The Courts hostility to the right Roe and
Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label abortion doctor. A fetus is described as an unborn child, and as a baby…”
I can see why using the term “abortion doctor” would pretty much indicate that you are hostile to Roe. But “unborn child” or “baby”? This really demonstrates the gap between the sides on this issue. As long as one side is taking about fetuses and the other talking about unborn children, there will never be resolution
Comment by Ben Kennedy — April 18, 2007 @ 11:55 am
The government’s victory doesn’t look all that sweeping to me.
The majority didn’t even overrule its prior Stenberg decision, which bent over backwards to make up new law to erect obstacles to regulation of even third-trimester partial-birth abortions.
There’s a huge moral difference between aborting a two-week old embryo on the one hand and an eight-month old fetus on the other.
The latter, unlike the former, really is infanticide.
Other civilized countries like France don’t permit nearly as many late-term abortions as the United States. Many countries essentially ban abortion after the first trimester.
Even Roe v. Wade rightly recognized that late-term abortions could be regulated (although the Doe v. Bolton decision issued that same year gutted that concession by allowing even late-term abortions to be performed based on ethereal emotional or familial “health” worries).
It’s hard to take some parts of the dissent seriously.
They say the court’s abortion jurisprudence is not about privacy but equal protection, even though Roe v. Wade said nothing about equal protection and relied upon the court’s earlier privacy jurisprudence.
In support of this claim, they cite not the court’s own holdings, but a law review article by a professor from the ideological fringe.
Perhaps it was hard to argue with a straight face that privacy extends to something close to infanticide.
The idea that regulating a medical procedure violates equal protection merely because the procedure happens to be performed on one gender is hard to sustain.
It seems in tension with the Supreme Court’s decision in Personnel Administrator v. Feeney (1979), which held that the fact that a government regulation affects one gender more than the other doesn’t make it sex discrimination unless it treats similarly-situated men and women differently.
Treating a regulation as sex discrimination because it impacts members of just one sex would have call into question a wide-range of unremarkable laws. Certain kinds of rape require male anatomy to perpetrate, making the prohibitions gender-specific, but that doesn’t mean that such prohibitions are sex discrimination or implicate equal protection.
Some men from certain third-world subcultures illegally import endangered-species extracts as folk cures for male impotence and sexual disfunction. Laws banning such uses to protect endangered species thus have a gender-based impact, but that doesn’t make them sex-discrimination, any more than laws protecting late-term fetuses are sex discrimination merely because they impact women more than men.
The dissenters selective concern with deference to trial court judges’ factual findings is interesting.
The dissent makes a big deal over the fact that the court supposedly did not give deference to the factual findings of the trial courts, which is generally required under Rule 52 of the Federal Rules of Civil Procedure.
But each of the dissenters in the partial-birth abortion case have refused to give any deference to trial court findings of fact in cases with a different ideological coloration.
For example, they gave no deference to the factual finding of the trial judge in the Grutter v. Bollinger race-based-affirmative action case, in which they voted to uphold a racial quota in admissions.
The trial judge in Grutter found that the University of Michigan Law School was using a racial quota, based on unchallenged evidence that enrollments of minorities remained essentially fixed from year to year at a number that was much higher than a race-neutral consideration of minority applicants’ grades and test scores would have produced.
That factual finding was entitled to deference and to not being reversed except for clear error, under Rule 52 of the Federal Rules of Civil Procedure.
The Supreme Court even granted review on the Rule 52 question, which was an obvious ground for affirming the trial court’s decision.
But the justices never even addressed Rule 52.
Each of the dissenters in the partial-birth abortion case voted to reverse the district court’s decision that the University of Michigan Law School was using a racial quota, without even alleging any clear error on the trial court’s part that would justify refusing to defer to its finding as required by Rule 52.
It’s odd that they have changed their tune and suddenly become so concerned with deference to trial courts in this case, when they showed no deference to trial courts in prior cases.
Comment by Hans Bader — April 18, 2007 @ 12:43 pm
Forgive my ignorance (I’m just finishing Con Law I right now), but how was this statute a constitutional use of Congress’ Commerce power under the framework of Lopez? The Court didn’t even seem to do a Lopez analysis at all. Can anybody tell me what I’m missing?
Comment by Chris Ewbank — April 18, 2007 @ 1:45 pm
Justice Thomas wrote in his brief dissent:
“I also note that whether the Act constitutes a permissible exercise of Congress power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”
That would be why it wasn’t considered here, though I think I remember hearing it addressed in the oral arguments (I could be wrong about that however)
Comment by Ben Kennedy — April 18, 2007 @ 2:12 pm
That Roberts and Alito did not join Thomas’s separate opinion is of no substantive moment. It is an unsurprising extension of what we saw during the confirmation process and what we have seen of them on the bench thus far: a very conservative ideology coupled with (some might say cloaked in) a more judicious temperament than that of Justices Thomas or Scalia. Roberts and Alito are not the type of Justices to assert their positions on issues not before the Court (and it would have been highly impolitic for them to have done so here).
Both expressed hostility to the constitutional right to abortion before ascending to the bench. Then-Judge Alito was the sole supporter of the spousal notification provision on the Third Circuit panel in Casey. There is no indication that their positions will be any different should the existence of the right itself come squarely before them in the future, particularly with today’s decision chipping away at the pillar of precedent supporting the right.
Comment by Dan Charles — April 18, 2007 @ 2:50 pm
Thanks, Ben. I guess I don’t understand Con Law/Civil Procedure well enough. But it seems that whether the statute was a constitutional use of Congress’ power would be important enough to raise sua sponte. Especially given this Court’s supposed respect for state’s rights. I guess banning abortion is more important to them right now.
If the Court’s conservatives are going to force lousy law like Lopez on us, they could at least play by their own rules.
Comment by Chris Ewbank — April 18, 2007 @ 3:31 pm
You are correct, Ben. The Commerce Clause was raised and substantially discussed during oral arguments. Its “absence” from the briefs was explained as a background for the tactic of the suit, i.e., they assumed the Act was constitutional under the Commerce Clause to attack it on other bases. In other words, Act was conceded to be constitutional under the Commerce Clause for the purposes of the suit and the court assumed as much, for the sake of argument, in its ruling. I doubt Justice Kennedy is trying to make a sub silentio ruling and Scalia and Thomas are simply making that clear (in a concurrence that praises the majority’s proper application of Casey, no doubt, without overruling Stenberg).
Not that my opinion matters, but this is a masterful and thoughtful opinion that gives clear guidance to lower courts, legislators, and prosecutors. It too ably discusses the medical science in a fashion laymen who actually trouble themselves to read it can comprehend — not the mushy garble of Roper and Lawrence. This is the most legitimate 5-4 majority opinion I have read in some while. Very narrow and classy. Perhaps one of Kennedy’s best opinions. I must admit, Ginsburg’s reaction seems a bit much: if this looks like an act of raw politics to you, you might want to get your eyes checked. It certainly gives hope for other big ticket opinions Kennedy will draft in this Term, regardless of the vote count.
Comment by Jacques McKenzie — April 18, 2007 @ 5:06 pm
In “United States v. Oakland Cannabis Buyers’ Cooperative” decided in 2001, Thomas wrote an opinion that interpreted the Controlled Substances Act of 1970, and he specifically noted that the Constitutionality of the law under the Commerce Clause had not been raised on appeal, so he would not address it. In Gonzales v. Raich (2005), the Commerce Clause was the central issue, and Thomas indicated that he would overturn the CSA on such grounds. His dissent here definitely opens the door for another challenge on the federal ban based on the Commerce Clause
Comment by Ben Kennedy — April 18, 2007 @ 5:08 pm
I’d also note that if it were the act of raw politics Ginsburg seems to take it as, then you’d see a number of dissents closer to 4 than 1.
Comment by Jacques McKenzie — April 18, 2007 @ 5:09 pm
[Thomas’s] dissent here definitely opens the door for another challenge on the federal ban based on the Commerce Clause.
Sure. In a future case.
Comment by Jacques McKenzie — April 18, 2007 @ 5:11 pm
What do men with power want? More power. A character in The Matrix movies uttered those profound words that I believe is all the fight over abortion rights is about. Now I do trust women who are anti-abortion do genuinely care about protecting the lives of unborn babies but the men, the ones who hold the power, don’t. All these men care about is seizing control of an extraordinary power that was not given to them. An extraordinary power which they hold absolutely no control.
In man’s history, whenever it was time to advance whatever social, political, economical or territorial objectives it usually resulted in the decimation of a nation or nations of people including children and babies. And the disposal of these living breathing children and babies was, again, usually not humane. So now magically this group of people have evolved and now have a sincere interest in protecting the lives of unborn children. Spare me. This is the same group of people with many members who have to be dragged into court to be forced to pay $25 a week in child support. Or they have to be thrown into jail for a complete lack of fiscal support for a child they helped to create.
This extraordinary power was given exclusively to women for a reason. A gift given by nature or by God whichever one believes. And if we (women) allow the control of this power to be legislated out of our hands, we are going to have to answer for that, no matter your feelings for the act of abortion itself. Women are functioning human beings who are able to stand, on their own, before whatever God they believe in and be held accountable for the choices they have made. And this particular choice, especially, is between the woman and God.
From what I keep reading the Supreme Court’s backing of the partial-birth abortion ban is just laying a foundation to eventually overturn Roe vs. Wade and eventually ban birth control in general. But before that happens I wonder if the masculine powers that be, insisting to have a say in all this, will first come to know what it’s like to conceive a child after being raped by a stranger or molested by their fathers? I wonder if they will first come to know what it’s like to struggle in poverty with three children and find yourself pregnant again? I wonder if they will first come to know what it’s like to be the crackhead who knows she would rather smoke crack than receive pre-natal care? Oh, that’s right. It’s impossible.
-Camille Thorns
Comment by cthorns — May 1, 2007 @ 12:53 am