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NRL News
Gonzales
v. Carhart:
The April 18 Supreme Court ruling in Gonzales v. Carhart is huge. The new five-justice majority upheld the federal law banning partial-birth abortions—but, perhaps even more importantly, it adopted a more objective approach to evaluating abortion-regulating laws in general. Abortionists can no longer get away with bringing a child to within inches of live-birth status before killing her. This alone is an important step forward. What may get us closer to the day Roe’s tyranny ends is the significant changes the Court announced in how it will handle challenges to abortion laws. Should future Justices apply the standards in Gonzales v. Carhart significant progress can be made. Of course that assumes the next one or two Justices confirmed to the Court do not harbor a stronger allegiance to Roe than to the Constitution. There’s a reason why pro-life victories are rare in the Supreme Court and in the federal courts. It is because the Supreme Court had stacked the deck against abortion regulations by the way it answered five questions: 1) how a case is brought; 2) what standard of review is appropriate; 3) how statutory language is interpreted; 4) whether any claim of a “health” benefit will trump any attempt to restrict abortion; and 5) how much weight is given to the testimony of abortion providers. Let’s look at the “old rules” and how the Court intends to rectify them. 1) To challenge a law, normally plaintiffs must allege actual harm that has (or would) result from the law “as applied” to them. If plaintiffs win, the law will stand, but the Court will define a narrow exception to its application to the plaintiffs and similarly situated people. Outside the protected area of free speech, speculative, hypothetical challenges are not permitted. Also, broad “facial challenges”—the kind that declare an entire law unconstitutional before it actually even takes effect—require showing that “no set of circumstances exist under which the [law] would be constitutional.” But in the abortion realm, the Court has routinely permitted facial challenges by abortionists and industry groups, to strike down entire laws on the basis of hypothetical harm to imaginary future abortion patients, which might occur in rare circumstances (if ever). If plaintiffs come up with even one hypothetical case, it has been enough to void the entire statute. Gonzales v. Carhart declares, with respect to the Partial-Birth Abortion Ban Act, that these “facial attacks should not have been entertained in the first instance. In these circumstances, the proper means to consider exceptions is by as-applied challenge.” The abortion industry may have a much tougher time challenging abortion laws. And even if they prevail, the remedy would be narrowly tailored to suit the plaintiff’s circumstances while the law itself will remain in force. 2) In cases involving “fundamental rights” or laws which treat classes of people differently, the Court has traditionally scrutinized statutory language strictly, combing every word or phrase for potentially unconstitutional discrimination. The “strict scrutiny” standard was adopted in Roe and later abortion cases. The 1992 case of Planned Parenthood v. Casey purportedly rejected this standard. Supposedly an abortion law could stand if it did not place a “substantial obstacle in the path of a woman seeking an abortion”—that is, if it did not create an “undue burden” for her. Justice Kennedy, author of the Carhart opinion, upheld the federal ban in light of the undue burden standard, reasoning that a woman can still have a mid- or late-term abortion by the “safe” dismemberment method. 3) In the 2000 case of Stenberg v. Carhart (Stenberg), the Court struck down Nebraska’s partial-birth abortion ban, claiming the description of the banned procedure was so vague it could apply equally to a dismemberment abortion. That conclusion required a very tortured reading of the relevant language, instead of giving the words their commonly understood meaning. In Carhart, Justice Kennedy cites “the canon of constitutional avoidance” by which “every reasonable con-struction must be resorted to in order to save a statute from un-constitutionality.” Quoting his dissent in Stenberg, Justice Kennedy wrote that this canon has “fallen by the wayside when the Court confronted a statute regulating abortion.” He announces that the commonsense rule of construction will be applied in abortion cases. 4) In Stenberg, the five-justice majority said that an abortionist must be allowed to use the partial-birth abortion method whenever an abortionist feels it is the best way to perform a second-trimester abortion, even on a perfectly healthy woman with a perfectly healthy baby (as most are). But in Gonzales v. Carhart, Kennedy noted both that, “There is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women” and that the Court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” This is consistent with Casey, Kennedy wrote, “which confirms the State’s interest in promoting respect for human life at all stages in pregnancy.” 5) The Court has always given inordinate weight to the testimony of abortionists and medical groups with an ideological stance favoring legal abortion. Little weight was given to contrary evidence presented by medical specialists in the field. In Gonzales v. Carhart, Justice Kennedy declares: “The law need not give abortion doctors unfettered choice ... , nor should it elevate their status above other physicians in the medical community.” Where there is no medical consensus, the testimony of abortionists as to “health” issues will no longer be final. Lastly, Gonzales v. Carhart injects reality into abortion jurisprudence. The Court abandons the old terminology of “pregnancy termination” and “potential life” in favor of candor, referring to the unborn human as a “child,” an “infant,” and to abortion as “killing.” It reaffirms the state’s legitimate interest in showing “its profound respect for the life within the woman,” as well as its interest in “protecting the integrity and ethics of the medical profession.” The decision acknowledges that “[s]evere depression and loss of esteem” can follow the decision to abort. Also, informed consent laws are seen as benefiting women and society as a whole (even if they may result in fewer abortions!). For these reasons, one can expect this Court to evaluate state laws regulating abortion more even-handedly than has been the case. |