Justice Kennedy has given new meaning to the aphorism that “anything worth doing … is worth doing badly.” The decision Wednesday in Gonzales v. Carhart seems to have set off chains of euphoria — and alarm — in the land. The pro-lifers have shown a joy that is surely out of scale with the narrow, constricted opinion that sprang from the mean nature of Justice Kennedy. And the pro-choicers, wringing their hands, seem not to have noticed that Kennedy has so cabined the approval of this federal law on partial-birth abortion that the “abortion liberty” seems to have been placed safely beyond challenge. As Kennedy was careful to assure his audience, the abortionist who goes merrily on his way dismembering a child — or, as he put it, the one who “disarticulates [a fetus] at the neck, in effect decapitating it” — is safely insulated from any danger of prosecution: The abortionist simply needs to avoid that indelicate matter of having a substantial part of the child dangling outside the body of the pregnant woman as he inserts a scissor into the skull of the child or finds another way of killing it.
Kennedy went out of his way to sound again the themes in the Casey case of 1992, in affirming Roe v. Wade. “We assume,” he said, “the following principles for the purpose of this opinion” — and then went on to list propositions that no one else among his colleagues in the majority is likely to accept. For example: that before the point of “viability” a state may not prohibit a woman from making a decision to “terminate her pregnancy.” Or that the state may not place an “undue burden” on a woman seeking abortion.
Beneath the Surface
During the oral argument on the case in November, the solicitor general, Paul Clement, argued that the bill on partial-birth abortion could be sustained without challenging in any degree the holding in Roe v. Wade. We took that as something he just had to say, and on the surface it was true. But what we sensed, beneath the surface, was that a decision upholding the law would mark the beginning of the end for Roe. The judges would be saying, in effect, that they were ready to start weighing seriously many limited restrictions on abortion, emanating from legislatures in the states. And in a chain those measures would surely come, step by step.
Now Justice Kennedy insists, in the same way, that the bill does not diminish Roe v. Wade, and we wonder whether we should discount that flat assertion in the same way we did Clement’s. But Kennedy, in control of the opinion, has acted precisely to foreclose virtually all piecemeal challenges to Roe. He has made it clear that the killing of the unborn can proceed almost wholly unchecked, as long as the grisly acts of dismembering or poisoning are taking place solely in the womb.
And yet, as he sought to mark off with exquisite precision the narrow dimensions of his judgments, he also took some remarkable steps to keep Dr. Carhart and his friends from coming into federal court again next week, with new rationales, which can tie up the bill once again. It may be a narrow decision, but Kennedy, to his credit, has taken some decisive steps to insure that this decision will stick.
Allowing for Restrictions
In a piece last January in First Things (“The Kennedy Court”) I anticipated that Kennedy would try to resolve the case in the most limited way by simply rejecting the decisions in the lower courts to strike down a law on abortion in a “facial challenge.” In most cases, a facial challenge will be accepted only when there appear to be no conceivable circumstances in which the law could be constitutional. With laws on abortion, however, the situation is inverted: The federal judges have been willing to enjoin the enforcement of these laws in facial challenges if there is any conceivable circumstance in which the law might be unconstitutional. Kennedy has now made it clear that this inversion of the law has been ended, and that is no small point: It means that laws on abortion will be allowed to work, to have their effect; that they will not be struck down flippantly on the basis of airy speculations offered by people who object to having abortions restricted. The laws would not be challenged then unless there is a concrete case of someone actually denied an abortion that could clearly be tested.
My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers. Most likely, I thought, the charge would be heard again that the law is fatally “vague.” But Kennedy moved decisively to foreclose those kinds of challenges. He argued that there is nothing vague about the definition of the partial-birth abortion. When the doctors who perform this procedure are intending to dilate the cervix and bring most of the body of the child outside the birth canal, they must know that they are intending this.
Kennedy also foreclosed the move to claim the need for a “health exception” to the law. The law already contained an exception for the cases, exceedingly rare, when a woman’s life would be in danger. And if a partial-birth procedure did not seem “indicated,” the federal court of appeals in New York had noted that the abortion could take place in the ways now common or conventional; so there were other, safe methods still available. The claim that partial-birth abortions were sometimes the safer form of abortion had been found, by Judge Casey in New York, to be a claim wholly speculative and theoretical, without any evidence offered in support.
Kennedy confirmed what I had written last January: that he was willing to accept an “as applied” challenge to the law: A pregnant woman with cancer might argue that it is especially risky for her to have instruments introduced into the womb. She might contend then the partial-birth abortion would be the safer method for her. But that kind of case is not certain to arise, or arise very soon. And Kennedy has been clear on the point that the law itself does not have to be overturned because it may not apply aptly in all conceivable cases.
The Next Steps
Then what kind of “good” may spring from a decision so limited? The decision in Carhart reaffirms yet again Roe v. Wade, but something else may be at work beneath the surface. There is a certain dynamism that comes into play when legislators are allowed to take hold of the matter again. About thirty states had passed laws on partial-birth abortion before they were invalidated in Stenberg v. Carhart in 2000. The states can now pass their own version of the federal bill, just tracking the language of that bill. That is all good practice. And once legislators get used to legislating again, other things may readily follow. Kennedy pointed out that the Court in Casey had upheld the requirements of informed consent. The legislatures can now start enacting those provisions again — most notably, they may provide for the use of sonograms to assure that the pregnant woman has something more than a vague impression of the child she is carrying. The viewing of a sonogram could be required, or it may simply be offered in the interest of letting a woman know what she is choosing.
In India, the use of sonograms has penetrated even poor areas, and brought the beginnings of a demographic crisis: Families anxious for sons have been altogether too willing to abort female babies. And given the sensibility of the time, the disposition of the government in India has not been to ban the killing of babies based on their gender, but rather to forbid clinics to make the information available. Of all things, we are hearing denunciations of these multinational capitalist firms, like General Electric, which do such underhanded things as to produce the equipment that gives people such information about their unborn children.
The next plausible move, then, is to bring back the scheme of banning any abortion performed on the basis of the sex of the child. My hunch is that that position, too, would command a large level of support in the public, comparable to the level of support for banning partial-birth abortion, and it too would recruit people who call themselves “pro-choice.”
But if legislators could take that modest move of banning abortions on the basis of sex, the public mind could be prepared for reasoning about the next step: barring abortions based on the disability of the child. In surveys in the past, more than half of the public were opposed to aborting a child if the child was likely to be born deaf. The opposition seemed to be invariant by the period of gestation. My own reading was that, if people thought it was wrong to kill someone because of his deafness, they did not think that the wrong varied with the age of the victim.
Here the legislatures could invoke the body of their laws dealing with discriminations against the disabled. And then perhaps they could get to the point of banning abortions after the onset of a beating heart. One survey recently found that about 62 percent of the public would support that kind of restriction. It is worth noticing, too, that in none of these cases except that of the beating heart would the legislation start offering protections based on trimesters or the age of the child. There would be no need to play along, and confirm, the perverse fiction that the child becomes more human somewhere in this scale of age, or that it is legitimate to kill smaller people with reasons less compelling than the reasons we would need in killing larger people.
The Effects of an Impulse
In the most curious way, then, a decision so narrow, so begrudging and limited, may invite a series of measures simple and unthreatening, but the kinds of measures that gather force with each move. We need to remind ourselves that we have seen such things before. We may recall, in that vein, the Emancipation Proclamation. It was limited, as a war measure. For Lincoln did not have the authority to strip people of what was then their lawful property in slaves. The Proclamation freed only those slaves held in areas that were in rebellion against the government. It did not cover the slaves held in Delaware, Maryland, Kentucky, Missouri. And yet … it was understood instantly and widely in the country that this measure had an “anti-slavery impulse.”
The decision on Wednesday, in Gonzales v. Carhart, was severely limited and diminished in its practical effects. But rightly or wrongly, there may be a sense that the decision opens the doors now; that it invites legislators and political men and women to deliver themselves from the reign of judges, and set their hands to this task once again.
– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College, and one of the authors of the Born-Alive Infants’ Protection Act.
Just Can’t Get Enough? The Editors read the Gonzales decision. Hadley Arkes writes on the importance of little things in long-term legal battles. Michael New makes a case for the effectiveness of state restrictions on abortion. Ramesh Ponnuru sums up the state of the abortion wars and gives a little history of how the press bought the pro-abortion line on partial-birth abortion.