I Was Wrong: Partial Birth Abortion Ban Upheld

Back at the first of the year, I peered into my obviously on-the-fritz crystal ball and predicted that Justice Kennedy would reverse his earlier position and vote to strike down the federal partial birth (intact dilation and extraction, or D & X) ban. Boy, was I wrong. Not only did he not change his position, he wrote the majority opinion affirming it! (Here is the decision in full.)

I have read the majority opinion. Here are the sections I see as the heart of the ruling:

The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), [contained] a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals [overturning the federal ban].

But, this interest in protecting fetal life does not mean that the esssential holding of Roe v. Wade—that there is a constitutional right to abortion before viability—has been undermined:

We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. ...

What does this mean? Roe v. Wade has been re-reaffirmed. On the other hand, while I am no expert on this area of jurisprudence, the following assertions seem to be a stronger affirmation of the moral value of nascent human life than has heretofore found its way into most Supreme Court jurisprudence:

The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. [Citing Roe. v. Wade.] This was not an idle assertion. The three premises of Casey must coexist...The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.

It is also interesting to note that the Court made a pretty big deal out of Nebraska’s unconstitutional PBA ban using the term “kill[s] the unborn child,” and the constitutional federal ban using the term “fetus.” It also discusses differing types of abortion as “concerning the way the fetus will be killed,” which the Court ruled “is of legitimate concern to the state.”

So what is the bottom line? Here’s how I see it at first blush:

1) Roe is not in any danger of being overturned as the Court is currently constituted;
2) Casey, not Roe, is now unquestionably the reigning case in abortion jurisprudence;
3) Restrictions and impediments to later term abortions will be permitted, if they are narrowly and precisely written, using medical rather than polemic/advocacy lexicon;
4) The intrinsic value of human life has been boosted. Abortion is unique in this regard because the fundamental issue of the woman’s personal autonomy is seen as a conflicting value to protecting embryonic/fetal life. Outside of the abortion context, however, it seems to me that this case could be construed as a strong affirmation of the State’s interest in protecting fetal, and perhaps even, embryonic human life.

All in all, a good decision, it seems to me.