Real Kato Blog: On Gonzalez v. Carhart

Today's Supreme Court ruling is a victory for abortion opponents. (Somebody please appoint me to the Supreme Court.)

Today the Supreme Court decided 5-4 that Congress could prevent a specific type of abortion procedure, intact dilation and extraction (D&X). Congress had passed a law in 2003, the so-called "Partial Birth Abortion Ban Act", that disallowed this procedure. Lower federal courts had declared the law to be unconstitutional because it contained no provisions to protect the health of the mother. Citing precedents in Planned Parenthood v. Casey and Stenberg v. Carhart, the lower courts had held that the federal law imposed undue burdens on the right to have an abortion.

Some notable points:

- Congress decided (rather high-handedly) that the procedure was never medically necessary to preserve the health or life of the mother. While it does have a provision to protect the life of the mother (even as it says that such a situation would never arise), it specifically omits health. This was the reasons other courts found the law to be unconstitutional.

- Ruth Bader Ginsburg, in a stinging dissent, declares that the new composition of the Supreme Court had caused it to ignore stare decisis, tossing aside the Casey and Stenberg precedents. Kennedy, on the other hand, argues that since the question of medical necessity is not resolved, the court is allowed to leave "margin for legislative error", letting Congress tip the balance of the argument on whether the law imposes the sort of undue burden proscribed by Casey and Stenberg. Hmm.

- Clarence Thomas wrote a short concurring opinion reiterating his belief that Roe v. Wade was fundamentally flawed. However, he did make an interesting addition: the ruling did not address whether the law was unconstitutional under the Commerce Clause (meaning, whether laws such as this should be reserved to the States and not Congress). This narrows the ruling somewhat, potentially opening the door for other types of challenges to federal abortion laws.

- The ruling finds that the law is constitutional "on its face". The law was not challenged "as applied", meaning there was no assertion that a particular person's constitutional rights had already been violated. This also narrows the ruling, and gives an avenue for litigation if a mother is harmed as a result of not having a D&X procedure.

Now, I've talked about Roe v. Wade and my views on abortion before (here and here), but let's talk about this particular decision and why it's so troubling.

- The principles of jurisprudence and stare decisis have been damaged, in my view. I don't think this ruling was in line with precedent. The Supreme Court has demonstrated fickleness and arbitrariness that is downright alarming. If the Supreme Court is so ready to reinterpret precedent, what is to prevent a flood of litigation to retry previously-settled issues? What is to prevent Congress from passing laws that the Supreme Court has already overturned, in the hopes that the new court is friendlier to its cause?

- The Court has shown itself to be a partisan entity. You might argue that Roe v. Wade demonstrated that already, but the fact that the recent change in composition of the court has swayed things so quickly... that's troubling.

- The law itself is troubling because it makes a medical assertion that is not backed by the medical community. Can Congress declare that AIDS is untreatable, and therefore no money should go into AIDS research? Can Congress declare that breast cancer is not as severe a problem as prostate cancer?

Look. I'm not saying that D&X is something that we should see more of. But the reasoning and justification for this law and for this Supreme Court decision are frightening. It's a very slippery slope we're on, and this decision opens the door for all kinds of challenges to rights that we currently take for granted. Whether or not you favor abortion rights... how long before Congress and the courts are similarly capricious about something you do care about? Here's my draft of the Seditious Electronic Communications Ban Act:

Congress finds and declares the following:

(1) A technological and ethical consensus exists that electronic communications, being representable in binary form, are not a form of speech, but are merely mathematical constructs.
(2) Satirical and critical remarks about elected officials provide encouragement, aid, and comfort to our Nation's enemies, and are therefore treasonous.

So in other words, Congress declares that something falls outside the realm of the First Amendment... and based on that, allows itself to ban people from emailing George Bush (or Bill Clinton) jokes. How do you like that?

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