Opinion Review: Gonzalez v. Carhart (PBA decision).

The Supreme Court has just handed down an opinion upholding Congress' "Partial-Birth Abortion Ban Act of 2003" [18 USC Section 1531] (the "Act").

In sum, the Act was challenged because it allegedly: (1) was "void" due to "vagueness"; and (2) "impose[d] an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." (p. 39.) After lower courts struck down the Act on these grounds, the newly constituted Supreme Court took up the case.

I bring up the new composition of the Court because the Justices assembled into their expected basically bifurcated camps. New Justices John Roberts and Samuel Alito sided with the five-member majority, which upheld the Act (and thereby reversed the Eighth and Ninth Circuits).

However, they did not sign onto Justice Thomas' brief concurring opinion in which only Justice Scalia joined, which went further than the majority opinion in that it essentially called for a reversal of Roe v. Wade, as follows: "I write separately to to reiterate my view that the Court's abortion jurisprudence, including [Planned Parenthood of Southeastern Pa v.] Casey [, 505 U.S. 833 (1992)] and Roe v. Wade, 410 U.S. 113 (1973), has no basis in the Constitution." (p. 1).

In addition, since the departure of Justice Sandra Day O'Connor, Justice Kennedy evidently stepped into her shoes as the "swing vote." However, the door is now swinging to the right because unlike a prior decision which struck down a prior PBA statute (Stenberg v. Carhart, 530 U.S. 914 (2000) (invaliding Nebraska's PBA law)), this Court affirmed a complete ban on the same abortion procedure.

In so doing, there are some revealing passages as to the Court's potential future direction with respect to abortion jurisprudence. Justice Kennedy, writing for the majority, plies open cracks in Roe v. Wade opened by Casey. For example, the majority held: "To implement its holding, Casey rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. [citation omitted]. On this point Casey overruled the holdings in two cases because they undervalued the State's interest in potential life." [citations omitted.] (p. 15.)

The majority continued in this vein: "Casey ... confirms the State's interest in promoting respect for human life at all stages in the pregnancy." (p. 33.)

Likewise, the Carhart Court found further support in Casey, as follows: "Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had 'undervalue[d] the State's interest in potential life.'...The third premise [of Casey], 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." (p. 28; emphasis supplied.)

Also, as expected, Justices Ginsburg, Stevens, Souter and Breyer dissented. In the dissent, Justice Ginsburg emphasized that Casey "reaffirmed Roe," (p. 2), and that the majority's opinion was "alarming" because it "refuse[d] to take Casey and Stenberg seriously." (p. 3.)

Importantly, the dissent recognized that the majority's use of the "rational basis" test (italicized above) is a departure from a more "heightened scrutiny" employed to review abortion restrictions or regulations (p. 20), which in turn essentially opens the door even more ajar to regulate abortion procedures. "Instead of the heightened scrutiny we have previously applied, the Court determines that a 'rational' ground is enough to uphold the Act. [citation omitted.] And, most troubling, Casey's principles, confirming the continuing viability of 'the essential holding of Roe,' are merely 'assume[d]' for the moment [citation omitted], rather than 'retained or reaffirmed [citation omitted].'" (p. 20.)

To abortion opponents, the decision is good news because, taking an incremental approach, it expands Casey by underscoring government's legitimate interests in preserving fetal life and authorizing restrictions of abortion pursuant to a less stringent "rational basis" rubric.

To abortion proponents, Justice Ginsburg's heated rhetoric tells the story: "[T]he notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court...." (p. 24.)