NRL News
Page 1
May 2007
Volume 34
Issue 5

Supreme Court Upholds Partial-Birth Abortion Ban Act
By Dave Andrusko

Contrary to what had been said in many quarters, not until Justice Anthony Kennedy actually read from the majority opinion upholding the Partial-Birth Abortion Ban Act could we know for sure that the swing justice on the Supreme Court had, at least in this case, swung in the direction of life.

The composition of the Court had changed since 2000 when the justices handed down their Stenberg v. Carhart decision overturning Nebraska’s law banning partial-birth abortion. Gone was the late Chief Justice William Rehnquist, a dissenter in Carhart, as was Justice Sandra Day O’Connor, who was part of the five-member majority. They had been replaced by Chief Justice John Roberts and Justice Samuel Alito.

And even though Kennedy had dissented in Carhart, he had also made it abundantly clear, in a previous case, that he still affirms the “core holdings” of Roe v. Wade.

Thus it was no sure thing that Kennedy would stay the course in the presence of a newly reconstituted High Court. But he did in a careful reasoned 39-page decision.

There are ten separate stories and editorials in this issue attempting to clarify what there was in Gonzales v. Carhart that evoked from dissenting Justice Ruth Bader Ginsburg “the legal equivalent” (in the words of Pulitzer Prize winner Paul Greenberg) “of jumping up and down and yelling.”

Reduced to its most basic, the 5–4 decision rendered April 18 was the first time the High Court has  upheld a ban on an abortion method since the disastrous Roe v. Wade decision was handed down in 1973.. Justice Kennedy was joined by Justices Antonin Scalia, Clarence Thomas, Alito, and Chief Justice Roberts.

In spite of angry protests to the contrary by Ginsburg and an army of pro-abortion litigants, what was banned in the law was quite specific. Justice Kennedy went out of his way to repeatedly demonstrate there was no way that other, more commonly used abortion technique (“D&E”) would be banned by the law passed in 2003.

So what was it about the decision that spurred pro-abortionists to apocalyptic, Roe-is-falling rhetoric?

Susan Wills’ analysis on page x is very helpful in that respect. For 34 years the Court has had its thumb on the scales of justice, giving pro-abortionists an impossible-to-overcome advantage. If pro-life litigants are routinely given a fair shake in court, it would be a huge loss for pro-abortionists.

To cite just two of the changes Susan lists that are on display in Gonzales v. Carhart: (1) there is no longer an automatic deference to the testimony (and wishes) of abortionists; and (2) there is a renewed willingness to give words their commonly understood meaning.

Justice Kennedy cites in Carhart “the canon of constitutional avoidance” by which “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”

In some ways Paul Greenberg may have put it best when he wrote, “This decision represents a small but definite move back toward what might be called the wisdom of repugnance, the instinctive recognition that there are still some things we cannot bring ourselves to do—even in the 21st century, and even after all the horrors of the 20th.”