The Supreme Court’s 5-4 decision in Gonzales v. Carhart did much more than simply uphold the federal Partial Birth Abortion Ban Act. The ruling struck a solid blow for sanity in an area — abortion jurisprudence — too often marked by pro-abortion madness.
With Supreme Court cases, the rationale is often as important as the result — maybe more so. And in Gonzales v. Carhart, how the Court reached its decision was of profound importance. Here’s an effort to translate some of the crucial points from the legalese.
“Facial” vs. “As Applied” Challenges
For years, whenever a state has passed a law restricting abortion, groups like Planned Parenthood have rushed into court to bring a constitutional challenge. The abortion attorneys then present the judge with hypothetical worst-case scenarios in which some women in some circumstances might suffer adverse consequences from the challenged law, and the judge obligingly strikes the whole law down — in legal terms, “on its face.” The law is thereby rendered inoperative in its entirety, even though the challenge rested upon particular hypothetical cases.
In Gonzales v. Carhart, the Court said such “facial” challenges “should not [be] entertained in the first instance.” Rather, an “as-applied challenge” is the “proper means” to address concerns about particular circumstances that may threaten harm to some women. In other words, if abortion doctors are worried about the law’s application to specific situations, then they should sue for court-ordered relief as applied to such circumstances. The law should not be knocked down as a whole.
This is bad news for the abortion industry. No longer can they leverage extreme or hard cases into across-the-board legal victories. At most, they can win court decisions that govern the exceptional cases. Meanwhile, the law — a waiting period or a parental-notice requirement, for example — will remain in effect in all other situations.
Standard of Review
To frame the question is often to decide the debate. In constitutional law, the question is framed with the choice of the “standard of review.” How strong a justification must a state offer for its law, and how closely tailored must the law be to that justification? Will a restriction be subjected to the most intense review — “strict scrutiny,” in legal shorthand — or the most mild, deferential review — “rational scrutiny” — or something in between? Which standard governs the case can largely predetermine the outcome, as laws rarely survive strict scrutiny, but generally do pass rational review.
In Gonzales v. Carhart, the Supreme Court spoke the language of “rational scrutiny,” the mild standard that gives legislatures considerable leeway. “Where [government] has a rational basis to act, and it does not impose an undue burden, the state may use its regulatory power . . . in furtherance of the legitimate interest in regulating the medical profession in order to promote respect for human life, including life of the unborn.”
To be sure, this is not a carte blanche for all abortion restrictions. Laws that impose a “substantial obstacle” to abortion, the Court noted, would be unconstitutional under the Court’s current precedents. But the “rational basis” test gives states the benefit of the doubt and is far more regulation-friendly than the kind of microscopic nitpicking that characterizes “strict scrutiny.” That means states can adopt a host of commonsense regulations on abortion.
For far too long abortionists have been treated as exempt from the rules that apply to other physicians. Not only do they literally “get away with murder,” they also frequently get away with malpractice. Courts, meanwhile, have tended to bow to whatever “Doctor” says: if the doctor supports or practices abortion, that doctor’s testimony about what is or is not a valid safety concern has been treated as virtually infallible. Indeed, after the Supreme Court’s prior partial-birth-abortion case of Stenberg v. Carhart, things got so bad that courts were overturning laws just because some pro-abortion doctors questioned the medical merits of the laws. As the court put it in Gonzales v. Carhart, “Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty.”
The Supreme Court repudiated this approach in Gonzales v. Carhart: “A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard . . . .” In particular, abortionists are not a law unto themselves. “The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.” In other words, from now on abortionists must play by the same rules as other physicians.
The “abortion distortion factor” has warped the law in this area ever since Roe v. Wade first invented a constitutional right to abortion. The decision in Gonzales v. Carhart has taken important strides in the direction of greater sanity and common sense in abortion law.
– Walter Weber is senior litigation counsel with the American Center for Law and Justice (ACLJ). Weber was the lead draftsman for the two friend-of-the-court briefs the ACLJ submitted in Gonzales v. Carhart and its companion case, Gonzales v. Planned Parenthood Federation of America.