The Federalist Society

The Federalist Society Online Debate Series


Partial-Birth Abortion Ban Act
April 26, 2007

On April 18, 2007, the Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act. A roundtable of experts has examined the opinions and has agreed to comment on the importance of the decision, and what it might portend for the future. Below is the first installment of an on-line Federalist Society discussion that will continue to unfold in the coming days. Bios for the experts that have commented on the case can be found below. Participants in the debate so far include Pepperdine Law School Professor Doug Kmiec, Duke Law School Professor Erwin Chemerinsky, Georgetown Law Center Professor Randy Barnett and legal counsel to the Judicial Confirmation Network Wendy Long.  Comments from Chapman Law School Professor John Eastman and others are expected soon.  Check back regularly for updates.

Douglas Kmiec - 04/21/07



Douglas Kmiec

Bio

Carhart is consistent with the principle of Stare Decisis

Carhart is a faithful application of the Casey precedent that reaffirms that the States "retain a critical and legitimate role in legislating on the subject of abortion. . . . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential." Stenberg was not consistent with Casey.  It was never tenable for the Stenberg majority to interpret the Nebraska statute in a manner that implicated abortion procedures beyond the partial-birth practice.  To reach that conclusion, the Stenberg Court had to both disregard the well-settled doctrine of constitutional avoidance and to thumb its nose at the State’s interpretation of its own law, and rather outrageously, even refuse to certify the Court’s strained construction about the meaning of the Nebraska statute to the Nebraska Supreme Court.

In any event, the definition adopted by Congress in the federal act responded to the artificial concerns articulated in Stenberg and left no doubt about which practice was precluded. 

Carhart is not “alarming”; it merely vindicates the balance that had been struck in Casey

In being faithful to past precedent, Carhart merely implements the Casey balance that recognized that before viability, a state "may not prohibit any woman from making the ultimate decision to terminate her pregnancy,” nor place an “undue burden” upon that decision that creates a “substantial obstacle” in her path. Yet, the State may pass "regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, [] express profound respect for the life of the unborn . . . ."  As Justice Kennedy reaffirmed in Carhart, "Casey, in short, struck a balance.  The balance was central to its holding.”  It is that balance which sustains the federal prohibition.

Carhart vindicates the rule of law insofar as it reduces the number of occasions in which abortion jurisprudence is not subject to the generally applicable interpretive standards applied outside of the abortion context

It is an elementary rule that "every reasonable construction must be resorted to in order to save a statute from unconstitutionality."  This basic principle of judicial humility was nevertheless disregarded in abortion cases.  This disregard of the rule of law had been noted by Justice O'Connor, who in Thornburgh observed in dissent that an unacceptable bias against abortion restriction had been incorporated into the courts decisions.  Said O'Connor: it was as if in abortion cases, the "canon of construction [was that] a permissible reading of the statute [was] to be avoided at all costs."

Likewise, in indicating that facial attacks are not the preferred means of constitutional adjudication, the Court was mitigating some of the confusion caused when the Court seemingly departed in some, but not all, abortion cases from the "heavy burden" placed upon parties that seek to strike a legislative enactment in its entirety.  The normal rule followed in Ohio v.  Akron Center for Reproductive Health was that those making a facial challenge to a statute must show that no set of circumstances exists under which the act would be valid.  By contrast, the plurality in Casey suggested that the burden on the challenger would be reduced to determining whether there was an undue burden upon "a large fraction of the cases in which [the regulation] is relevant."  There remains dispute and unclarity about what “large fraction” is relevant or even why this specialized standard is warranted.  In keeping with the restrained ethnic of the Roberts Court -- avoiding decisions on matters not squarely necessary to decide the case or controversy before it -- the Carhart majority, finding that the challengers had not come forward with proof that the federal ban would create an undue burden in a large fraction of the relevant cases (how ever that might be conceived), did not need to resolve the debate between those competing standards.

Carhart does not preclude the proper application of a health exception

The proper means to protect health in light of the balance struck in Casey is to focus on, as the Court said in Carhart, on the “discreet and well-defined instances [in which] a particular condition has or is likely to occur in which the procedure prohibited by the act must be used.  In an as applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack."  Justice O'Connor for a unanimous Court in Ayotte had confirmed that when a statute is found invalid as applied to a particular plaintiff it is not unconstitutional as a whole but merely invalidated as to the unconstitutional application to the fact situation before the Court.  This had troubled the adjudication of the Court since Roe.  Wrote Justice O'Connor in Ayotte, "we prefer [] to enjoin only the unconstitutional applications of the statute while leaving other applications in force. As Justice O'Connor explained, this would have been appropriate in Stenberg had either of the parties or the court asked for an appropriately refined remedy.  It was that remedial refinement, and Justice O'Connor's instruction, that was followed in Carhart.

Carhart does not demean the status of women; it vindicates an effort to find common ground by democratic means

I have enormous respect for Justice Ginsburg as a person of intelligence and sensitivity.  I believe she is mistaken to indulge the legal premise that equates the equal citizenship of women with the continued availability of a cruel and inhuman abortion practice.  Her attempted reframing in the dissent of the abortion precedents from being anchored upon liberty and privacy [see Justice Blackmun in Roe]  to the claim that partial-birth abortion vindicates "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature” is unwarranted. No woman's equal citizenship should be made to depend upon the availability of a particularly heinous method of abortion or a woman's willingness to undergo it. It may well be that Justice Ginsburg is as frustrated, as am I and my women law graduates continue to be year after year, with corporations and law firms that do little or nothing to meaningfully structure work environments to make it possible for a woman to fully participate in the economic and social life of the nation without having to beg for special treatment, or, as is implied or even explicit, in Justice Ginsburg's equal citizenship remark, to face a choice between work and family that men do not have to face.  If a woman seeks to give birth to a child, it is long past time that corporate America honor that by recognizing that women, unlike men, have the capacity to contribute greatly to every intellectual endeavor and uniquely to the building up of civil society by giving birth and playing an irreplaceable and often predominant role in the upbringing of children.

In the highly charged and over politicized environment in which we live, it may be vain to hope that the contending sides will concede the constitutionality of a prohibition of the partial-birth practice as common ground in what Professor Laurence Tribe thoughtfully describes some years ago as “a clash of absolutes," but it is that.  The Roberts Court and Justice Kennedy in particular, should be praised for writing no more broadly than necessary to allow the contending sides to stand upon that ground -- however briefly



Erwin Chemerinsky - 04/21/07



Erwin Chemerinsky

Bio

My friend Doug Kmiec is wrong in saying that Cahart is consistent with the principle of stare decisis. It is a dramatic change in the law of abortion.

Stenberg v. Carhart declared unconstitutional a law that was almost identical to the statute upheld by the Court on Wednesday. Justice Breyer's majority opinion stressed that the Nebraska law was unconstitutional because it did not have a health exception and because it was broadly written to prohibit many abortion procedures. The federal statute had no health exception and though narrower than the Nebraska law, it still was more broadly written than Stenberg would allow.

Even more troubling is the Court's shift in approach. Planned Parenthood v. Casey and Stenberg v. Carhart made clear that a law regulating abortion is facially unconstitutional if it creates an undue burden for some women. For example, the requirement for spousal notification was struck down in Casey because for some women, such as those in abusive relationships, it would be an undue burden. Stenberg struck down the Nebraska law because for some women it was prohibiting the safest form of abortion.

In Gonzales v. Carhart, the Court rejected a facial challenge and said that it had to be an as applied challenge. By that analysis, Casey would have come out differently and women for whom spousal notification was an undue burden would have had to make an as applied challenge. Stenberg, too, would have come out differently under Justice Kennedy's analysis in Wednesday's decision. Most telling, all four of the Justices in the majority from Stenberg who are still on the Court saw Wednesday's decision as a major departure from the prior case and the prior method of analysis.

The as applied approach prescribed by the Court makes no sense. If a woman is in her 22nd or 23rd week of pregnancy, just before viability, and is seeking an abortion and her doctor believes that the safest abortion procedure is prohibited, an as applied challenge at that point makes no sense. The state has no interest in forcing the doctor to dismember the fetus in utero and remove it piece by piece, rather than the procedure prohibited by the law. Once the law allows abortion, it must be for the woman and her doctor to decide the safest procedure to use.



Douglas Kmiec - 04/22/07



Douglas KmiecBio

There are few teachers of constitutional law I admire more than Erwin Chemerinsky.  He is a true defender of freedom for many who are otherwise overlooked by the law and the powerful.  His legacy of service to USC and Los Angeles is warmly remembered and dearly missed now that he resides across continent on the fine and fortunate Duke law faculty.  Nevertheless, he is in error in two respects.

First, it is a mistake to over-read Carhart -- that is, to characterize it as a "dramatic change."  Cambridge Fellow, and abortion proponent and author, David Garrow in the New York Times of April 21 cautions against "exaggeration of the ruling" in this way, writing:  "Justice Kennedy explicitly and insistently limited the reach of the new prohibition. He emphasized that the ban covers only the relatively rare intact dilation and evacuation method, and does not in any way apply to standard dilation and evacuation, the most common method for late-term abortions, in which fetal tissue is removed from the womb piecemeal."

The second and more troubling error for me is my inability to comprehend how a champion of justice for those beaten unlawfully by renegade LAPD officers or those sentenced inflexibly and arguably disproportionately for a "third strike" crime would not also want to align himself -- at least in part -- with the innocent unborn, who have little or no political voice.  In debating this issue with others in the past, the claim defending abortion practice often ultimately comes to rest on an assertion that the unborn are a "lesser" class of human life.  Rightly, Professor Chemerinsky does not speak in this way, though from where I stand his complete acceptance of "whatever the woman and her doctor decides" leaves someone out. 

If we are going to talk in terms of "dramatic," the news from the Court will need to be more than that a singularly gruesome procedure has been put off limits.  Let me know when the Justices get out of the business of indirectly defining personhood in disregard of the democratic choices made by the States.  That would be big news.  And were we somehow as a people to come to agree that no woman facing an unwanted pregnancy would be without resources providing hospital care in support of maternal health and the birth of the child, that would be even bigger news.  And if we as a people would somehow grasp the science of human nature as we made these democratic choices, that, indeed, would be dramatic news.  Keeping a doctor from spreading a pair of scissors in the back of the skull of a partially delivered child is a footnote.

Because of the important considerations in our legal system due to even seriously questionable precedent, the Roberts Court did not speak to any of these truly "dramatic" things.  Indeed, true to their honorable and thoughtful and careful judicial personalties, Chief Justice Roberts and Justice Alito had no occasion to speak more broadly and, in not joining the brief concurrence of Justices Thomas and Scalia, consciously chose not to do so.  Respect for law as well as understanding of the abusive, impoverished conditions of the women referenced by Justice Ginsburg and Professor Chemerinsky explain this restraint.  

Relatedly, on the matter of the Court's return to as applied constitutional jurisprudence, I take Justice Kennedy, and the concession of the Solicitor General, at their word: the rule announced in Carhart is an allowance for pre-enforcement as-applied challenges. As the discerning Justice Ginsburg suggests, this type of challenge may well be possible beyond the individualized emergency hypothesized by Professor Chemerinsky, premised upon a proper record of "a particular condition [that] has "or is likely to occur" in which the prohibited procedure must be used.  Respect for unborn life ought not to authorize the same categorical or one-sided disregard for the well-being of the mother as has, until now in a small way, been visited upon the child. When these absolutes clash, to again borrow Professor Tribe's terminology, it is the unhappy fact that one may well need to yield, but if that be so, it can at least be without a conscious bias in favor of one side and only after a fair assessment of particular "medical risk."

In any event, most of the general populace likely assumed this is what a health exception meant all along, and not the broadly worded license of abortion on physician demand that Doe v. Bolton surreptitiously has been often construed to license.



Erwin Chemerinsky - 04/22/07



Erwin ChemerinskyBio

I very much appreciate Professor Kmiec's kind words. Although we rarely agree, I tremendously admire and respect him, his work, and his unfailing kindness.

It seems that there are two areas of disagreement between us. First, is Carhart a dramatic change in the law? At the very least, to go back to his initial point, it is a departure from precedent. Stenberg v. Carhart held that a law prohibiting so-called partial birth abortions is unconstitutional because it did not have a health exception and because it was unduly broad. The federal law has no health exception and is also broader than just prohibiting one procedure. More importantly, Casey and Stenberg facially invalidate laws because they are an undue burden for some women. Carhart rejects that approach.

As I mentioned earlier, it is telling that the four Justices from the majority in Stenberg all see Wednesday's decision as inconsistent with the prior ruling. Justice Kennedy, the author of Carhart, wrote a vehement dissent in Stenberg. His position is consistent, but it is not consistent with the Court's prior decision.

Is this a dramatic departure? Obviously, only time will tell. But I think that the shift from facial invalidation to requiring as applied challenges is very dramatic. It means that many more laws restricting abortion will be upheld. For example, under the reasoning of Wednesday's decision, both spousal notification and the Nebraska law in Stenberg would likely be upheld. Justice Ginsburg wrote the most impassioned opinion in her career on the Supreme Court because she sees the dramatic implications of the majority's holding.

Second, Professor Kmiec says that I show a disrespect for the "innocent unborn." But that, of course, is our fundamental disagreement. I do not regard the fetus before viability as an "unborn child" or as "unborn life." Calling the fetus an "innocent unborn" is begging the entire issue of the abortion debate. More fundamentally, I believe that it is for each woman to decide for herself how to regard the fetus before viability. And it should be for the woman and her doctor to decide what procedure is safest for the abortion.

As to whether partial birth abortion is a barbaric procedure as Professor Kmiec claims, it must be remembered that the issue is not whether the fetus is going to be aborted, but how. In an abortion in the weeks right before viability, there are two choices. Dismember the fetus in utero and remove it piece by piece. This increases the risk of perforation of the uterus and is more dangerous especially for women with certain bleeding conditions and infectious diseases. The other procedure is to remove the fetus in tact and then abort it. Is one really more humane than the other? Ultimately, since abortion is legal at this phase of pregnancy the woman and her doctor should decide how it is going to be done, not Congress.



Randy Barnett - 04/23/07



 Bio

Both of my friends, Doug Kmiec and Erwin Chemerinsky are partially correct. Doug is right that Carhart v. Gonzales does not directly threaten a women’s right to choose to have an abortion. Irwin is right that Carhart does change current law — in particular, the important holding of Stenberg v. Carhart — and, in my view, for the worse.

First, as to the right to have an abortion, because other procedures remain protected, abortions will still be legally available. This procedure was banned because, as popularly described, it seems a lot like infanticide. While pro-life proponents claim all abortions are indistinguishable from infanticide, pro-choice advocates must draw a line between one and the other. Viability — the stage at which a fetus can live outside the womb independently of the mother — provides a useful line because it gives women considerable time to decide whether or not to bear a child. After viability, the only compelling reason for an abortion of any kind is to protect the life or health of the mother, rather than because of family planning.

If “partial birth abortion” consists of the partial delivery of a viable fetus before killing, it certainly looks a lot like infanticide, which is why the federal ban was popular enough to pass. A law banning only this would not be problematic, but merely draw a line between abortion and infanticide in a somewhat different place than is now drawn.

But this statute goes further in two ways: first, it bans the use of this procedure throughout pregnancy, even before viability. Second, it makes no exception to protect the health of the mother. The fact that the procedure is banned before viability means the procedure is not akin to infanticide, unless one believes that all abortion is infanticide, which the Court currently denies. By the same token, the fact that no exception to the ban is made to preserve the health of the mother is evidence that this is about more than preventing infanticide. After all, the very same act is allowed under the statute if necessary in the opinion of a physician to protect the life of the mother, in which case the act itself does not constitute infanticide. So, even though the case does not strike at the heart of the judicial protection of abortion, pro-choice advocates are right to be concerned.

Regrettably, by defining the “health” of the mother so broadly, pro-choice advocates brought this problem on themselves. If a health exception applies, for example, to the emotional health of the mother, then it is the exception that will always swallow the rule, as opponents of partial birth abortion rightly complain. Had the Partial Birth Abortion Act contained a narrowly defined exception for the physical health of the mother, even many pro-choice advocates might have supported it.

What is most unfortunate is how Carhart weakened the constitutional rights of all patients. To reach its result, the Court had to eviscerate the approach it had adopted in 2000, over Justice Kennedy’s strident dissent, in the case of Stenberg v. Carhart. (So much for stare decisis!) Put simply, in Stenberg, the Court held that, if there was substantial disagreement among medical authorities over whether a medical procedure such as this one was necessary to preserve the health of the mother, then a woman and her physician could make the choice. In Carhart, however, Justice Kennedy adopted a rational basis standard to uphold the judgment of Congress that such a procedure was never necessary to protect the health of the mother. This means that, contrary to Stenberg, whenever there is a substantial disagreement among medical authorities, Congress gets to make the decision. After all, however it decides it will be supported by some substantial body of medical opinion.

But why should this be? Putting abortion to one side, why should not a patient and her doctor have the liberty to decide on a course of medical treatment so long as their judgment is supported by a substantial body of medical opinion? In other words, when it comes to preserving one’s life and health, why should not individual choice, as opposed to Congressional choice, be protected when supported by a rational basis?

The overlooked tragedy of Carhart is that the rights of all patients to preserve their lives and health were seriously weakened by the overreaching of both sides of the abortion debate: by abortion supporters who interpreted a health exception as completely open-ended and by abortion opponents who pushed for a ban that applied before viability and that did not include a narrowly drafted exception for the physical health of the mother. In Carhart, the sick and dying are another collateral damage of the abortion wars. And so too, for that matter, was the enumerated powers scheme of Article I, but since the Court did not address that issue, neither will I.



Douglas Kmiec - 04/23/07



Douglas KmiecBio

Professor Barnett makes some insightfully valid points within the structure of existing abortion jurisprudence. Given his splendid, but sadly unrequited, argument in Raich in defense of the Constitution actually ratified, rather than the one that many see as judicially fabricated, might he not also be troubled by the disregard of constitutional text that underlies the abortion jurisprudence -- not only, the questionable commerce clause premise for the ban in issue in Carhart, but also, the missing history, tradition and practice sustaining the largely, until now, unfettered right to terminate a pregnancy?

Randy Barnett, of course, is a libertarian hero for the ages, so I suspect his acceptance of the Stenberg decision and the architecture of abortion that Justices Scalia and Thomas perceive to have been constructed not upon constitutional terra firma, but constitutional airspace, may for him simply happily coincide with his thoughtful work articulating a presumption of liberty.

It is interesting on the libertarian score to contemplate that Justice Ginsburg is anxious to re-center the abortion jurisprudence upon equality.

In a thoughtful essay for the Los Angeles Times (April 20, 2007), Professor Cass Sunstein of the University of Chicago noted correctly that Justice Ginsburg in her dissent in Carhart sought to re-anchor the abortion right on equality rather than liberty or privacy which has been the originally claimed basis for the right in Roe and Casey. Professor Sunstein observes that, "for Ginsburg, this alternative understanding of the right to choose has concrete implications." Moreover, Professor Sunstein thinks the new equality rationale for abortion is "powerful,"and he wishfully anticipates that it may yet become a the majority view.  I wonder if Professor Barnett concurs.  Why is shifting the abortion justification to equality powerful or advantageous? Professor Sunstein writes: "It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities." These propositions are undoubtedly correct. A state law that endangers a woman's health would fail the rational basis standard let alone the heightened scrutiny associated with gender classifications. Yet, Carhart does not deny a health exception, it merely states that the case for it must be made in specific application.

Moreover, there is nothing in Justice Kennedy's opinion in Carhart that assumes women are "too fragile" to digest accurate descriptions of abortion procedures, and if there were, that would violate equality. In truth, Justice Kennedy is respecting - not subjugating - the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence. Indeed, it is the state's assumption that the rational woman will forgo an abortion when she has all the facts. Said Justice Kennedy: "the State's interest in respect for life is advanced by the dialogue that better informs . . . expectant mothers . . .of the consequences that follow from a decision to elect a late-term abortion."

Nevertheless, Professor Sunstein says that "for supporters of the right to choose, the sex equality argument has considerable advantages over the privacy argument. Much more than the right to privacy, the ban on sex discrimination is firmly entrenched in constitutional doctrines." Yes, it is tenable to see doctrinal formulations prohibiting invidious gender distinctions as more sure footed than the penumbral privacy claim, but does this actually confer an advantage on the supporters of abortion? All that the ban on gender discrimination entrenches is the requirement that the state articulate an "exceedingly persuasive justification" for drawing a distinction along gender lines. Whether or not one believes the fetus is an unborn child and a human person, one would think that Casey's acknowledgment of a state's interest in protecting life from conception might well satisfy that "entrenched" standard of review.

This still leaves the issue of whether men and women are similarly situated with respect to pregnancy. Basic principles of equal protection require that those who are alike or similarly situated be treated in like manner; they do not require collapsing or disregarding actual gender differences. Professor Sunstein addresses this matter of gender difference in this fashion: "True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?" It's not clear what Professor Sunstein means by this singular "targeting of women's bodies." In one sense, given the differences between men and women's bodies, it arguably is little more than a restatement of the question are men and women different? If they are, it is not gender discrimination to treat them differently.

Yet, both Professor Sunstein and Justice Ginsburg are onto something important. It can only be grasped, however, if the claimed link between abortion and equality is broken. Justice Ginsburg is mistaken to indulge the legal premise that equates the equal citizenship of women with the continued availability of a cruel and inhuman abortion practice. The source of the inequality is not the unavailability of a given abortion procedure, but the failure of social or work environments to simultaneously accommodate the birth of a child and a women's professional or other market skills. Ginsburg puts the whole burden of accommodation on the woman. Her attempted re-framing in the dissent of the abortion precedents from being anchored upon liberty and privacy to equal protection does not solve this. Abortion does not make women the equal of men; abortion makes women different from women and men.

No woman's equal citizenship should be made to depend upon the availability of a particularly heinous method of abortion or a woman's willingness to undergo it. The real truth of Justice Ginsburg's (and derivatively Professor Sunstein's) equality insight is this: women, but not men, are disadvantaged by society and in the economic marketplace by pregnancy. The solution, however, does not lie in putting a heavy thumb on the scale in favor of terminating pregnancies, which disregards the state interest in life, but in reforming the culture and the marketplace. A culture or marketplace that indirectly coerces women to forgo having children, or when they conceive them to abort them, is a marketplace and a culture that does indeed have matters backward.

Justice Ginsburg is highly intelligent. Despite brilliance and erudition, she was turned away early in her legal career by Felix Frankfurter for a Supreme Court clerkship and a dozen New York law firms. Matters have improved for women law graduates, but by how much?

Justice Ginsburg may be as frustrated as my women law graduates continue to be. Year after year, far too many corporations and law firms do very little to meaningfully structure work environments to make it possible for a woman to fully participate in the economic and social life of the nation without having to beg for special treatment, or, as is implied or even explicit, in Justice Ginsburg's equal citizenship remark, to face a choice between work and family that men do not have to face. If a woman seeks to give birth to a child, is it not long past time that corporate and professional America honor that by recognizing that women, unlike men, have the capacity to contribute greatly to every intellectual endeavor and uniquely to the building up of civil society by giving birth and playing an irreplaceable and often predominant role in the upbringing of children?

With all due respect to Justice Ginsburg and Professor Sunstein, it is not archaic stereotype to recognize that women are not the equal of men when they surpass them in having the capacity to bring forth children and have a career. It is wrong to structure the law and society so that women must deny one capacity or the other. That is the ultimate denial of choice.



Wendy Long - 04/26/07



Bio

Is Carhart, or is it not, a departure from the Court's prior abortion precedents? Both perspectives have been ably articulated. The problem in answering this definitively is that the abortion precedents were themselves so unclear and malleable from the start - in short, the antithesis of what a good judicial opinion should be. Moreover, the Court's entire abortion jurisprudence has, from its conception and infancy in 1973, been a sort of ultra vires exercise. When a line of cases is fundamentally flawed and inconsistent with the text, history, and principles of the Constitution to begin with, the stare decisis analysis arises in an entirely different light.

I think Doug is right: Carhart is consistent with the Court's precedents, flawed though they are. The one respect in which it departs from more recent abortion precedents - and thus arguably technically does not comport with stare decisis - is that Carhart appears to have ended the super-duper-privileged status of plaintiffs challenging abortion regulations, who recently have been successful with facial challenges to those laws without proving, as ordinary litigants must, that "no set of circumstances exists" under which the law could be valid. In a narrow and technical sense, then, Carhart arguably departs from stare decisis because abortion plaintiffs were not held to this standard in Casey or Stenberg.

But I think it is more correct, and a better perspective, to say that Carhart respects stare decisis in that it comports with the most important of the Court's precedents on the requirements for a facial challenge, United States v. Salerno. Earlier abortion cases had used the Salerno standard until, inexplicably, a majority went off the rails on the standard for facial challenges.

With respect to the bigger picture of stare decisis and abortion precedents, the situation is analogous. "Disrespect for stare decisis" is an odd objection to a court decision that corrects previous errors and returns a line of jurisprudence to its correct constitutional moorings. If a decision is wrong, then stare decisis is not a compelling reason to pile up more wrong precedents. In addition, the amount of weight to place on stare decisis varies with the effect that the past precedents have had, and how well settled the law and society are as a result of them. It goes without saying that abortion law has been in complete turmoil, and our society is possibly even more divided and unsettled over the issue, than before Roe. Accordingly, Roe and Casey are not candidates for the stare decisis hall of fame. So even if Doug and I are wrong, and Carhart somehow, when the dust settles, appears to have shaved a sliver off of Roe and Casey and Stenberg, it is not the end of the world. Rather, one almost dares to hope it is the beginning of a new era of judicial restraint, and returning in some small way the right to choose abortion policy to the people through the process of representative democracy.

One has a sense, therefore, Carhart emerges slightly from the muck and mire that has been the Court's abortion jurisprudence. Over time, a slight change like this can set us on a course to ultimately get things cleaned up and corrected. This is not a foregone conclusion, but a distinct possibility. The door is now open, for example, for states to go back and introduce new state prohibitions on partial birth abortion. The federal law was drafted so narrowly - necessarily so by Stenberg - that the practical effect of this decision is likely to be negligible on actual abortion practice. And, even if this law is effectively enforceable, as Justice Ginsburg noted in dissent, the Federal Partial Birth Abortion Act is not going to save the life of one unborn child. There are other ways to chop up a baby. So it's a very modest and technical legal step in correcting the extreme and incorrect state of abortion jurisprudence.

The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg's dissent. Roe v. Wade and its progeny have long been a judicial fiat in search of a justification. Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged. But the Ginsburg dissent is in a way, even less convincing. It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007, and frankly, shocking as part of a Supreme Court opinion.

Liberty and equality are in a sense two sides of the same coin, constitutionally speaking: we are free men (I use the term "men" to mean humans; I count myself among such "men") because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms.

But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies. Men do not.

It does not detract from female liberty or equality under the Constitution that only women can have babies. The Constitution cannot do anything about it. The hard-core feminist rhetoric that the "right" to have the brains vacuumed out of the skull of one's own baby is the cornerstone of "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship" is gravely misguided as a matter of law and as a matter of ethics.

Doug construes this point very generously: perhaps, he says, the Ginsburg dissent embodies a frustration that he and his female law students feel over the lack of woman- and mother-friendly work environments, and the fact that women have "to face a choice between work and family that men do not have to face."

Here, I have to depart from Doug's view. Of course, even if such frustrations were valid, they would not justify the killing of innocent human beings, which would be the argument that Justice Ginsburg is advancing. But I do not think the frustrations are themselves valid. Men face analogous choices, given the limits of biology: there is only one place their bodies can be at any given time. They can be at home, caring for children (and many men I know are doing this ably and admirably). Or they can be at work. Was it unfair to them that they had to choose between child care and work? I don't think so. Nor is it unfair for a woman to have to choose whether to work or take care of children - or indeed, a third

choice: try to do both at once. It is amazing to me that Justice Ginsburg, and Doug, don't see it as a victory that women have this fantastic array of choices before them. The expansion of these choices is perversely now construed as imposing inequality?

Twisting this state of affairs into the contention that women somehow lack equality or autonomy because they cannot simultaneously choose everything, seems to me mistaken, and a negation of "choice" itself. It is not pregnancy, moreover, that even implicates this choice: the unborn baby, although a separate person, can easily go with his mother to work, and a pregnant woman can do pretty much anything she could do, work-wise, while not pregnant. It is only after the birth of a child (which one can give up for adoption - yet another "choice" - if one does not want to move down the decision tree of choices to address the child care-versus-work choice) that the "choice between work and family" that Doug refers to springs into being.

And, as I have said, that choice presents an embarrassment of riches, equally, for men and women.



Douglas Kmiec - 04/26/07



Douglas Kmiec

Bio

Wendy's gift of clarity to this tangle of caselaw is most welcome and her treatment of the stare decisis point is impeccable.

On the re-centering of the abortion right on equality, I affirm that no claim of equality can constitutionally, ethically, or logically justify the taking of another human life.  Justice Ginsburg would fault this self-evident truth only because the life of the unborn child is to her and other proponents of abortion not self-evident.  How one gets past this profound difference in view remains, and perhaps will always remain in this earthly exile, a mystery.  Democracy at least allows us the opportunity to offer and to propose to our fellow citizens the best evidence -- from reason and faith -- for our mutual consideration and decision.  Carhart's reinforcement of that democratic opportunity is welcome by clearing away some of the judicially-crafted clutter that precluded it is welcome.

On men and women in the workplace and in the larger culture, my point is a simple one: we desire the benefits of a stable family and the care associated with it, but we do precious little to honor or to facilitate the family's well-being.  This is of course true whether any particular family is guided on day-to-day principally by mothers (as most still are), or more modernly by the joint efforts of mothers and fathers, or even more remarkably, principally by fathers (which is still described in colloquial conversation as "role reversal").  That is a cultural point.  It requires cultural retooling from all the engines of cultural influence -- families themselves, churches, the media -- news and entertainment, and as already said in an earlier posting, corporate America.

In corporate America, including law firm America,  Justice Ginsburg is right to perceive that the circumstances for women are marginally better than when she was shut out of  many New York opportunities, but marginally better is still not equal.  This shows up in everything from the winks and nods that go on in hiring committees that steer away from hiring a talented women because hiring partners believe "she will want a family in a year or two," to the somewhat grudging hiring that then allocates women to the so-called "mommy track" to the continued differences between male and female pay.  Yes, much of this is against the law -- constitution or statute -- and it exists because women have babies and men don't.  Yes, men can (and some do as Wendy points out) choose to stay home to care for the children born of women, but it would be a remarkable day when it is the presumption in our culture or the workplace that either a husband or a wife would equally desire flexibility for the care of the family. That the brilliant mind of Justice Ginsburg sees the only route to "equal citizenship" for a woman to hinge upon the least possible interference with a woman's decision to terminate a pregnancy suggests how far we still need to travel to give honest priority to the family, and through it, what those insightful founders thought was an "unalienable right to life."



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