Controversial Supreme Court decisions generally render one interest group exultant over the Court’s application of justice, and another just as bitter over the Court’s mistaken activism. However, in the aftermath of the recent Gonzalez v. Carhart decision upholding the Partial-Birth Abortion Act of 2003, many conservatives seem confused about the implications of the decision. Some laud the majority opinion for upholding the ban on “intact dilation and extraction” (hereafter referred to as intact D&E). Other abortion opponents decry Justice Kennedy and the majority for refusing to overturn Roe v. Wade, branding this reluctance as yet further evidence, as Otway said, that justice is lame as well as blind.
This decision contains elements that should rightfully excite and exasperate those of us who believe that the dignity of life extends to the smallest and most helpless among us. While the Court again affirmed a woman’s right to end her pregnancy, the decision reveals a subtle but significant shift in the Court’s view on fetal life and the State’s interest in prenatal life.
Gonzalez v. Carhart challenged the Partial-Birth Abortion Act of 2003, which prohibited physicians from performing intact D&E. In the banned procedure, the physician removes the unborn child intact from the cervix after perforating and crushing the skull. Generally performed during the second trimester of pregnancy, intact D&E is far less common than ordinary D&E. During ordinary D&E, the physician uses forceps to dismember the infant while still in the uterus and removes it in pieces.
In the 5-4 decision, the Court rejected claims that the law was unconstitutional because it unduly burdened a woman’s ability to obtain an abortion, and that it lacked a health exception. Kennedy, Scalia, Thomas, Roberts and Alito formed the majority opinion, while Ginsburg, Stevens, Breyer and Souter dissented.
At first, the decision seems to be a long-sought vindication of unborn life. However, celebrants should be cautious. First, Kennedy’s opinion held that the act did not constitute an undue burden largely because the availability of other abortion procedures. Almost 90 percent of abortions occur during the first trimester, before intact D&E. Even in the second trimester, intact D&E is far less common than normal D&E. Accordingly, abortion supporters need not fear because the right to tear an unborn child limb from limb remains securely protected.
Further, the majority assumed the validity of the right to privacy. Kennedy, quoting a previous decision Planned Parenthood v. Casey, clearly articulated, “Before viability, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” To the consternation of many advocates of fetal dignity, the pernicious penumbra providing constitutional protection for abortion under the guise of an ethereal right to privacy remained unchallenged by the Court.
Nevertheless, abortion opponents need not lose heart and must resist the common conservative urge to disparage the system. Several aspects of Kennedy’s decision are restrained yet groundbreaking in their reflection of the Court’s changing perceptions about abortion.
First, the Court undermined the Roe precedent that divided pregnancy neatly into stages of viability. During the first two trimesters (previability), the right to an abortion was to be almost unconditionally accommodated. However, Kennedy observed that the Partial Birth Abortion Act covered both previability and postviability because “by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”
Elsewhere, Kennedy interpreted the Court’s decision in Casey as a rejection of both “Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted.” Essentially, the Court appears ready to recognize that the line between viability and non-viability is more fiction than fact; that the unborn infant is alive; and that the state’s interest in protecting unborn life truly encompasses the entire pregnancy.
More critically, Kennedy abandoned the notion that all abortion regulation should be viewed with constitutional suspicion. Addressing the charge that the act was unconstitutionally vague, Kennedy argued that the canon of avoidance demands that any law-from abortion to firearms-should be given the benefit of the doubt. That is, justices should assume that a law is a constitutional exercise of state authority, instead of deciding beforehand that a statute is or isn’t constitutional because of what it regulates.
Kennedy added that this method “has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion.” The Court, instead of assuming an abortion regulation is constitutional and looking for its rational basis, has often scoured every document in the law library (in the U.S. and elsewhere) that might permit it to protect abortion and nullify the law. This, Kennedy implies, is a wrongful exercise of judicial authority.
What the decision implies is that abortion regulation will at last be viewed in terms of reason. Whenever the State has a rational interest in regulating abortion, this case hints that the regulation will be upheld if it does not unduly burden the woman’s right. Significantly, Kennedy also argued that just because the result of an abortion statute is to make abortions more difficult or expensive to obtain does not mean the law is an undue burden. Further, the Court correctly held that abortion doctors-just like other physicians-must adhere to ethical codes established by the State.
The Court’s decision in this case certainly opens the door for more extensive abortion regulations by assuring that the government does have a reasonable interest in showing “profound respect for life within the woman.” While the Court must eventually reckon with the ill-founded right to privacy, the Court showed in Gonzales v. Carhart that regulating and even banning some types of abortions will be interpreted in light of the State’s rational interest in protecting life and regulating the medical profession. Perhaps one day dismembering a living infant and discarding it in a pan will be just as illegal as the Partial Birth Abortion Act made perforating an infant’s skull and sucking out the brains.