Put on Your Body Armor

Concerning yesterday’s decision in Gonzales v. Carhart , a few preliminary observations based on a very quick reading:

The Supreme Court’s abortion jurisprudence remains a singular embarrassment. That fact is well known by, and infuriating to, Roe ‘s sophisticated supporters and foes alike. Despite what NARAL, Planned Parenthood, as well as their sisters, their cousins, and their aunts say for public consumption, they are well aware that the right to abortion is not now, and never has been, etched into constitutional stone. It rests, and always has rested, on the flimsiest of legal rationales, and on studied avoidance of the facts of life before birth. No matter how hard it has tried¯and God knows, it has tried¯ the Supreme Court has been unable to escape the inevitable consequences of these failures.

The short history of abortion litigation from 1973 until the present hour is the history of an increasingly embattled pro-choice majority struggling to explain and justify its prior rulings. Yesterday, the majority lost one of its members and slipped into the minority; for how long we cannot tell. But consider this: Thirty-four years after the Court enacted Roe (I use the verb intentionally), the justices could do no better than 5-4 in deciding what they had previously decided. And this: The Court’s own syllabus of yesterday’s decision required six and a half pages of closely printed 10-point type to explain what happened. These are not what one would call measures of a coherent or confident body of law.

Here, a brief tour d’histoire may be helpful. The central problem with Roe (indeed, with all the cases that have followed in its wake) is that it never addressed what, or more precisely who, is killed during abortion. The Court, per Justice Harry Blackmun’s majority opinion, thought it sufficient to describe the unborn child as a "potential" human being, implying that it was something different from (and less valuable than) an actual human being. In neither instance did the opinion offer the slightest factual evidence or philosophical reasoning to explain the difference, nor has any subsequent decision of the Court bothered to do so. The entirety of abortion litigation has proceeded on the premise that the only cognizable set of rights in question belongs to the pregnant woman. There is, of course, the little problem of the pesky fetus; his or her presence must be nominally acknowledged in some sense, to be sure, but no more than is necessary to get on with the essential business at hand¯justifying the woman’s right to do pretty much as she wishes.

As for the woman’s right itself, Blackmun stated¯to say "argued" would give him too much credit¯that the Constitution protected her decision to abort her unborn child. This right was said to derive from a right of privacy, the putative existence of which had been discovered by the Court only eight years before and was said to reside in "penumbras formed by emanations" from various constitutional provisions. The strength of the woman’s right, Blackmun went on to imply, varied inversely with the child’s age in utero : It was essentially incontestable during the first trimester, somewhat less so during the second, and theoretically extinguishable during the third. He further implied that once the child reached "viability," by which he meant the capacity to survive outside the womb, it became a rights-bearing creature.

Roe ‘s reference to trimesters and viability, however, were deceptive shadow play, for at all stages of fetal gestation, concern for the woman’s life or health could trump any claims that might be made on behalf of the child. The Court underscored the latter point in a companion case, Doe v. Bolton , by ruling that health included mental health and that mental health incorporated a subjective sense of complete well-being.

The 1973 abortion cases accomplished two goals at once, but only the first was intentional¯to make abortion on request the constitutional law of the land. The second was an inadvertent by-product of the justices’ naïve arrogance, demonstrating that they had little understanding of the subject they had so cavalierly removed from legislative control: The initial opinions, by raising more questions than they answered, guaranteed that the Court would become a permanent council of statutory revision on all matters touching abortion. As the states pressed the Court for answers on what they were or were not permitted to do, the justices wandered deeper and deeper into a legislative morass without benefit of map or compass.

Might a legislature require a married woman to first seek her husband’s consent before obtaining an abortion? Require a doctor to preserve the life or health of the fetus after a pregnancy has been terminated? Ban saline abortions? Mandate waiting periods? Compel the creation of detailed medical reports? Require parental notification or consent before minors could undergo abortion? Forbid public funding of abortion? Declare that life begins at conception? Ban the use of public facilities for performing abortions? Require testing to determine extra-uterine viability?

As these and a host of other questions of legislative policy presented themselves in subsequent litigation, it became painfully apparent to all close observers, including the justices themselves, that Roe offered precious little guidance. Having misread common law and statutory history, and having cashiered constitutional precedent as irrelevant, the justices had no choice but to fabricate new law more or less ex nihilo . Gloss after gloss was layered upon the 1973 rulings until very little remained of Roe ‘s original rationale, other than the ritual invocation of a constitutional right to abortion, whose provenance and justification became harder and harder to explain or sustain. By 1989, Blackmun’s argument, including his deceptive trimester schema, resembled nothing so much as a child’s blanket that had been washed until it had more holes than fabric. Roe ‘s reasoning, strictly speaking, is not much honored today by anyone¯least of all by the justices, who have abandoned essentially everything but its conclusion.

Roe nevertheless survives as symbol, and a very powerful symbol it is. A confused and confusing pro-choice majority on the Court clings to it like a drowning man clutching at a life preserver. Aging feminists rally ‘round it as the sine qua non of their liberation from antediluvian religious authority and male bondage. Postmodernists of various stripes, who look to the Court as the font of endlessly evolving constitutional aspiration, continue to hail it as the moral equivalent of Brown v. Board of Education . Roe also hovers like a malign shadow, omnipresent even if not always explicitly acknowledged, over increasingly nasty judicial confirmations; and in the larger political realm, the case remains the supreme iconic representation of the differences that divide "red" and "blue" America. No Democrat can hope to be nominated without performing obsequies before Roe ‘s altar, and the current boomlet for Rudy Giuliani notwithstanding, it seems unlikely that a Republican can be nominated who fails to distance himself from the decision’s moral and legal implications.

Thirty-four years after Roe fecklessly sought to settle the question by removing it from legislative control, abortion agitates the body politic as few other issues, and the justices are more perplexed and divided than when they began. In recent years, a slim pro-choice majority of the Court has sought to salvage what it could from Roe ‘s shards by re-potting the right to abortion in the Due Process Clause of the Fourteenth Amendment. The prevailing test now holds that a regulation of abortion will not survive judicial scrutiny if it imposes an "undue burden" on the pregnant woman’s decision.

The new approach, however, has proven no more availing than Roe ‘s original theory, which the Court had regularly invoked to strike down even modest restrictions on abortion. Law professors and their students, who have infinite faith in the power of words to compel results they favor, insist that "undue burden" establishes a reasonable bright-line rule that only fools would contest. In application, however, the rule is but a rhetorical mask that disguises the radical subjectivity of the judgment being rendered. In Planned Parenthood v. Casey (1992), a sharply splintered majority employed the test for the first time to sustain diverse restrictions on abortion, including an informed consent requirement, a mandatory twenty-four-hour waiting period, a parental consent requirement for minors, as well as various recordkeeping and reporting regulations. In prior cases, however, the Court had decreed similar provisions to be unconstitutional. Did this mean that the justices had now abandoned Roe in all but name? Even as the Court upheld the regulations, the plurality opinion in Casey went beyond anything Blackmun said in Roe by endorsing the right to abortion as but one expression of a high-fallutin’ theory of individual autonomy that, it said, lay at the heart of the Constitution. Casey , in short, appeared to point in two directions at once.

Casey did one thing more: It muted the talk about privacy and shifted the constitutional ground for abortion into the more comfortable territory (for the majority at least) of the Due Process Clause. This enabled the Court to assume , without actually having to argue, the existence of a substantive right to abortion, thus empowering the justices to decide whether a particular abortion regulation was or was not unduly burdensome. Having thus altered its own rationale for abortion, the Court then had the brass to say that it would be unseemly to overrule Roe . Sticking with precedent, after all, is the very essence of the rule of law, and for the justices to be seen shifting now this way and now that would undermine faith in the Court as our ultimate guide to constitutional meaning. This is constitutional chutzpah of the first order.

If you find all this bewildering and infuriating, you are hardly alone. Whatever else Casey sought to accomplish, it demonstrated for all the world to see that the justices themselves were hopelessly adrift. Witness the Court’s syllabus of the decision:

O’Connor, Kennedy, and Souter, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III,V-A, and VI, in which Blackmun and Stevens, JJ., joined, an opinion with respect to Part V-E, in which Stevens, J., joined, and an opinion with respect to Parts IV, V-B, and V-D. Stevens, J., filed an opinion concurring in part and dissenting in part. Blackmun, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Rehnquist, C.J., filed an opinion concurring in the judgment in part and dissenting in part, in which White, Scalia, and Thomas, JJ. Joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C.J., and White and Thomas, JJ., joined.

Given this disarray, it was hardly surprising, in the Court’s next major outing on the subject, Stenberg v. Carhart (2000), that Justice Stephen Breyer practically twisted himself into a pretzel to overturn Nebraska’s prohibition against a barely disguised form of infanticide. Along the way, however, he lost Justice Anthony Kennedy, who had co-authored the rhapsody to autonomy in Casey ‘s plurality opinion. Kennedy’s Stenberg dissent was welcome news indeed, but his collective musings on abortion gave us no confidence that he would remain on the side of the angels. All one could tell for sure was that the constitutional case for abortion now rested on little more than increasingly desperate assertions of judicial fiat. The "undue burden" test was only the latest rhetorical cover for what five or more justices on any given day "feel" about abortion and its limits.

Congress replied to Stenberg by enacting the Partial Birth Abortion Ban Act of 2003, the statute in issue in yesterday’s litigation. Congress paid its respects at the house of Roe while refusing to concede that Roe protected all forms of late-term abortion. Based on reliable (although not undisputed) medical testimony, it found that partial-birth abortion was never medically necessary, and it took care to describe with precision (which Stenberg said the Nebraska law had not) the prohibited procedure. It also refused to include a specific health exception. Various plaintiffs argued that the Act was unconstitutional on its face because it contravened standards set forth in Roe , Casey , and Stenberg . Specifically, they alleged that the Act unduly burdened a woman’s right to choose a second-term abortion, that its terms were impossibly vague, and that it lacked a specific maternal health exception.

First the good news. A 5-4 majority, with Kennedy writing, sustained the statute against these facial challenges. Kennedy distinguished Stenberg by saying that Congress (unlike the Nebraska legislature) had taken sufficient care to define the prohibited procedure with reasonable specificity. He further noted that the absence of a maternal health exception was not per se fatal, because Congress had found that partial-birth abortion was never medically necessary. Accordingly, the Act did not run afoul of Casey ‘s undue burden standard.

Kennedy’s opinion is a step in the right direction, albeit a modest one. The decision, along with last year’s ruling in Ayotte v. Planned Parenthood (rejecting a facial challenge to New Hampshire’s parental notification statute) will increase the burden on those who wish to strike down even modest restrictions on abortion. The majority (at least for the time being) is not going to roll over every time the spirit of Roe or Casey is invoked as a reason to strike down abortion regulations. Plaintiffs, who have had rather an easy time of it over the years when launching facial challenges, will have to work harder to overturn statutes they don’t like. As a practical matter, that is all one can say for sure about yesterday’s ruling.

Proponents of abortion will, of course, scream to the heavens that Roe has been effectively eviscerated. Don’t believe it for a minute. It is very much alive and well, as is Casey . The Court, and the Court alone, remains the final judge of what may or may not constitute an undue burden. All the Court decided yesterday was (a) that there might be a valid legislative role in a very narrow category of late-term abortions; and (b) what constitutes an undue burden will have to await the specific application of the Act’s provisions to particular facts.

If you’re inclined to be optimistic, you might place some modest hope in the prospect that Kennedy’s opinion opens the door ever so slightly to an examination of what fetal viability means. But I wouldn’t count on it. Once the Court starts down that road, it will have to examine and discuss the characteristics of unborn children¯an undertaking it hitherto studiously avoided, and for good reason. Still, Carhart is the first occasion in which a majority has even nodded in the direction that late-term abortions might be legally problematic. Roe disingenuously implied as much, only to ensure that the implication was swallowed by the maternal health exception at all stages of fetal gestation.

Now for the not-so-good news. Justice Kennedy made it clear that maternal health remains a viable constitutional standard. Indeed, he all but invited litigation that would present that issue in specific circumstances. What may be slightly less clear today than two days ago is that the maternal health exception may not be an absolute trump. Only time will tell.

Justice Ruth Bader Ginsburg wrote a stinging dissent, which was joined by Justices Stevens, Breyer, and Souter. Kennedy’s altogether modest hint that Roe

may not have mandated abortion on demand under any and all circumstances was

treated by Ginsburg as a total rejection of the Court’s abortion jurisprudence. This is either rhetorical posturing or a measure of her capacity for legal fantasy.

In the first place, Kennedy’s opinion does nothing of the sort. It sustains the main thrust of Roe and Casey without substantial qualification. Secondly, what does Ginsburg make of the fact that Casey upheld a variety of procedural regulations? Her opinion reads Casey as if its paean to autonomy was the be-all and end-all of the abortion controversy; that is, she reads it as if its muting of Roe ‘s privacy rationale was mere rhetorical sleight-of-hand. Privacy and due process, it would seem, are for Justice Ginsburg just different labels for the same thing, which is to say, an absolute right to abortion. She seems genuinely puzzled that Kennedy fails to get it. Her position, of course, gives the lie to Blackmun’s trimester schema and to the dicta about viability, which for Ginsburg and her allies seem to be so much wink, wink, nod, nod rhetoric that no one ought to take seriously.

The justice’s angry opinion will, of course, be cited chapter and verse by the usual suspects. When the next vacancy opens on the Court, you can count on its becoming a centerpiece of the next nasty confirmation hearing, which will surpass all hitherto existing nasty hearings in vituperation. It will do so because the law of abortion, now more than ever, rests on nothing more than arbitrary judicial will. That being the case, it’s the number of votes, not constitutional reasoning, that matters. Liberals have known this from the minute Roe was handed down. Carhart reminds them that the rationale for abortion can no longer be sustained by mere pretense; only a stronger assertion of judicial fiat will do; and that now requires, more than ever, a secure fifth vote. Put on your body armor.

Michael M. Uhlmann, a frequent contributor to First Things , teaches American law and politics at Claremont Graduate University.