Commentary: Kennedy vote in play on abortion
on Nov 8, 2006 at 12:37 pm
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.
