The Court & Abortion: Worse Than You Think

1.

When President Bush nominated Judge Samuel Alito to succeed Justice Sandra Day O’Connor on the Supreme Court, it was widely expected that the first clear demonstration of an important shift in the Court’s ideology would be its reversal of one of its recent abortion decisions. In 2000, O’Connor provided the swing vote in the Court’s 5–4 Stenberg v. Carhart decision striking down a Nebraska statute that outlawed the procedure pejoratively described as “partial-birth abortion.” Congress, dominated by conservative Republicans, then passed in 2003 essentially the same statute in order to provoke another test and, as expected, Alito’s replacing O’Connor made the difference.

Last month the Court declared that the federal statute—the so-called Partial-Birth Abortion Ban Act—is constitutional in another 5–4 decision, Gonzales v. Carhart. The act outlaws a procedure that is used in only a very small fraction of abortions and some commentators have suggested that the new decision, though regrettable for some women, makes little overall difference.¹ But the decision is nevertheless worrying, not just because it confirms the Court’s expected ideological shift but also because the awkward opinion that Justice Anthony Kennedy wrote on behalf of himself and the four more conservative justices offers novel and dangerous justifications for regulating abortion, and these could provide the basis for much-further-reaching constraints in the future.

The medical procedures at issue in the case are gruesome—to some people, revolting—but it is necessary to describe them. Between 85 and 90 percent of all abortions are performed during the first trimester of pregnancy, almost all through vacuum aspiration of fetal tissue. When abortion is performed after the beginning of the second trimester, however, that method is no longer feasible, and doctors use what is called dilation and evacuation (D&E). The fetus is killed in the womb, then dismembered as it is extracted, part by part, through the dilated cervix into the vagina.

Some doctors—it is not known how many—use a variant of that method that has been called “intact D&E” (or sometimes “D&X”—dilation and extraction). In that variant, a portion of the fetus—generally its legs—is extracted through the dilated cervix and the fetus is then killed by piercing the cranium that remains inside the womb, extracting its contents, and crushing it, so that the dead fetus can be brought into the vagina intact. The act makes it a crime, punishable by a jail sentence, for a doctor intentionally to perform an intact D&E, though it does not ban the standard D&E. It provides an exception when the intact method is necessary to save the mother’s life. But it does not provide any exception for a physician who uses the intact method because he believes, as many doctors do, that the standard method poses a greater risk to the mother’s health.

The Supreme Court’s abortion jurisprudence is now dominated not by its famous 1973 decision in Roe v. Wade, in which it first declared a woman’s right to abortion, but by its 1992 decision in Planned Parenthood v. Casey, which reaffirmed the basic rights recognized in Roe but set out a new doctrinal basis for those rights.² The Casey decision was based on an opinion signed by only three justices—O’Connor, Kennedy, and David Souter—but that opinion stands as an authoritative statement of what the case decided. It laid down three principles: that government has a legitimate interest in fetal life and in the health of a pregnant woman from the inception of pregnancy; that women have a right to abortion until a fetus becomes viable (which in contemporary medicine means roughly the end of the second trimester); and that government may not place an “undue burden” on that right even in furtherance of those legitimate interests. Kennedy reiterated these principles in his new opinion, but his argument depended on a new and narrow interpretation of them.

In the Stenberg v. Carhart decision of 2000, Justice Stephen Breyer, in his opinion for the Court, declared the Nebraska statute unconstitutional because it did not contain any exception for risk to a mother’s health. He noted that medical opinion was divided about whether standard D&E was riskier than the intact variant but, he said, an exception on grounds of health is required if “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” Forcing a woman to undergo a procedure deemed risky by such medical authority, he said, would indeed impose an “undue burden” on her constitutional right to a second-trimester abortion. The five conservative justices have now held the opposite. Since doctors disagree about the relative risks of the standard and intact procedures, Kennedy declared, Congress is entitled to make its own assessment.³

That holding threatens to trivialize Casey’s standard of an “undue burden” on a woman’s constitutional right. It allows government itself to make the crucial medical judgment whether its own constraint on abortion is burdensome. Several state legislatures have announced themselves ready to enact progressively stricter constraints on abortion to test the limits of what the new Supreme Court will allow. Kennedy’s ruling that they can themselves decide what is medically burdensome gives them new hope of success. He conceded that the Court should not give legislatures an absolutely unlimited discretion to make such medical judgments; the Court should require the judgments to be rational. But the record in this case shows how weak he meant that qualification to be.

Breyer was plainly correct in finding substantial medical authority for the view that a standard D&E is sometimes riskier than an intact D&E. He cited, among much other testimony, a persuasive statement to this effect from the prestigious American College of Obstetricians and Gynecologists.⁴ Three federal district courts and two federal circuit courts of appeal had declared the Partial-Birth Abortion Ban Act unconstitutional before the Supreme Court reversed them, and the district courts had compiled a huge record of testimony recording widespread medical opinion that supported the College’s opinion. Members of Congress had attempted to find support for taking the opposite view, but their performance was unimpressive. Several doctors testified to Congress that the standard D&E carries no greater risks than intact D&E, but none of them had ever performed an intact D&E, several did not perform abortions at all, and one was not even an obstetrician-gynecologist.⁵ As one of the district court opinions declared, “The oral testimony before Congress was not only unbalanced, but intentionally polemic.”⁶ It is never difficult to find dissenting medical opinion on any issue; it must be particularly easy when the issue is as drenched in ideological and religious controversy as abortion is.

In passing the Partial-Birth Abortion Ban Act, moreover, Congress showed a depressing indifference to medical fact in other ways. The preamble to the act states, for example, that no medical school teaches the intact procedure—in fact a number of the leading American medical schools do teach it—and that there is a medical consensus that it is never necessary and should be prohibited, which is patently false. The Republicans who steered the statute through Congress, and President Bush who hailed it as creating a “culture of life” when he signed it, were guided by anti-abortion ideology, not medical judgment. But Kennedy’s ruling that government has the power to adjudicate medical controversies about abortion would have been wrong even if Congress had discovered impressive medical opinion on its side. Forcing a woman either to abandon abortion or to accept a procedure that distinguished medical opinion, as well as her own doctor, regards as unsafe is obviously a serious burden on her right to choose, even if other doctors disagree.

2.

So Kennedy was unable to reconcile the Court’s decision with his own claim to continue to respect Planned Parenthood v. Casey. The most alarming parts of his opinion, however, are those that try to answer an obvious question that would remain even if the ban on intact D&E were not burdensome. What business does Congress or a state have in choosing among methods of abortion at all? Casey declared, as I said, that government has two pertinent interests: in protecting fetal life and in safeguarding the health of pregnant women. The act plainly does not serve the first of these interests. It regulates the method, not the fact, of abortion and full compliance with it would not save a single fetal life, since in each case doctors could instead use the standard D&E method. Kennedy did, however, make some puzzling attempts to show that the statute might reflect the second interest Casey recognized: protecting pregnant women. Doctors often do not describe abortion procedures to their patients, he said, and a woman might be crippled with horror when she later discovered the details of how the fetus she was carrying was killed.

This is a bewildering suggestion for several reasons. It is unclear, first, why a woman would be any less horrified to discover the details of a standard D&E abortion. Second, though the concern about retrospective horror Kennedy described might justify requiring doctors to describe their procedures in advance—Casey itself upheld requirements that doctors provide information as not burdensome—it seems grotesquely paternalistic as a reason for not allowing the patient to make the choice at all. Third, and most important, Kennedy’s paternalism flatly contradicts the principle that provided the rationale of the three-justice opinion in Casey: that people must be left free to make decisions that, drawing on their fundamental ethical values, define their own conception of life.

If this principle is discarded, then Casey’s argument for basic abortion rights collapses. If a state may protect a woman from possible “severe depression and loss of self-esteem,” as Kennedy put it, by not permitting her to choose how her fetus will be killed, why may it not protect her more securely by not permitting her an abortion at all? Indeed, Kennedy said he was assuming that many women are traumatically remorseful after any abortion, no matter what procedure is used, and he noted that “respect for human life finds an ultimate expression in the bond of love the mother has for her child.”

Kennedy’s additional arguments that government has a legitimate interest in forbidding intact D&E abortion are even more alarming. He went beyond the Casey list of legitimate interests the state has in regulating abortion to declare that the state also has an interest in protecting the reputation of the medical profession and, most ominously, the sensibility of those in the community who believe that “D&E is a procedure itself laden with the power to devalue human life” and that intact D&E “implicates additional ethical and moral concerns.” These justifications suppose that government may outlaw sound medical procedures for no better reason than that many people find those procedures disturbing or immoral. That is an equally direct repudiation of the basic Casey principle that such decisions must be left to the conscience of those directly involved.

To support his claim, Kennedy cited the Court’s decision in Washington v. Glucksberg in 1997, which upheld laws that prohibit doctors from assisting terminally ill patients to commit suicide. But in that case the Court suggested at most that states may ban assisted suicide in order to protect vulnerable dying patients from the pressure of relatives and doctors. It certainly did not hold that a state may do so just because many of its citizens believe that suicide is immoral or devalues human life. That is exactly the kind of justification that Casey ruled out.⁷

Kennedy himself elsewhere and recently rejected that kind of justification for criminal law. In 1986, the Supreme Court, in Bowers v. Hardwick, upheld a law making sodomy a crime. In 2003, in Lawrence v. Texas, the Court overruled Bowers and declared such laws unconstitutional. In the majority opinion Kennedy wrote:

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.

He concluded, quoting from the three-justice Casey opinion, “Our obligation is to define the liberty of all, not to mandate our own moral code.”

3.

What does Gonzales v. Carhart portend? Kennedy may—or may not—want to retain basic abortion rights, but his unfortunate opinion will provide comfort and quotations for those who do not. Two of the justices—Clarence Thomas and Antonin Scalia—took this occasion to repeat their view that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.” They would vote to deny all abortion rights at any opportunity. The two newest justices—Chief Justice Roberts and Alito—joined Kennedy’s opinion and did not write separately. But their votes show how little their assurances to the Senate that they would respect precedent are worth. Roberts said, in his confirmation hearings, that he would not overrule a past decision unless it had proved “unworkable” or its basis in law had been eroded by other Supreme Court decisions.⁸ Stenberg v. Carhart was not unworkable and has not been eroded, but he voted to overrule it without even offering an explanation.

A study has shown that O’Connor was the swing vote in thirty-one of the 5–4 Supreme Court decisions treating a variety of issues—not only abortion but also affirmative action, race, and government control of election expenses.⁹ We must now regard all these decisions as vulnerable to reconsideration and reversal in the next several years as the fiercely conservative justices set out to rewrite American constitutional law without much caring about the logic of the arguments they use to do so. Bush’s appointment of Roberts and Alito may prove to be among the worst of the many disasters of his miserable administration.