National

Turning Point Decision?

High Court Upholds Partial-Birth Abortion Ban

BY DAVID FREDDOSO

REGISTER CORRESPONDENT

April 29- May 5, 2007 Issue | Posted 4/24/07 at 7:00 AM

WASHINGTON — The Supreme Court’s 5-4 decision upholding a ban on partial-birth abortion, handed down April 18, may affect only one rare kind of late-term abortion. But according to a top legal scholar, the ruling is a major turning point in constitutional jurisprudence on abortion.

Pro-life activists are thrilled about the decision, as well.

“I’m delighted,” said Joseph Cella, president of the Catholic political activist group Fidelis. “This ruling demonstrates the Roberts Court’s respect for the rule of law, and it certainly builds on the powerful educable moment that the partial-birth abortion debate was for the pro-life movement. It reinforces that and it certainly made its decision as far as the country has an interest in preserving the life of the unborn child.”

Indeed, the decision in Gonzales v. Carhart is the first since the 1992 Casey decision to take seriously what that earlier ruling refers to as the state’s “legitimate interest” in protecting “the life of a fetus that may become a child.”

In every previous Supreme Court case on abortion, this “interest” was given mere lip service and had no real weight. In Gonzales v. Carhart, that interest supercedes the concerns the court expressed in earlier rulings that vague “health reasons” could justify almost any kind of abortion at any time in a pregnancy.

“The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” wrote Justice Anthony Kennedy in the Court’s majority opinion. Kennedy also wrote that the Casey court did not make “an idle assertion” when it held “the fact that a law that serves a valid purpose ... has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”

Douglas Kmiec, professor of constitutional law at the Pepperdine University Law School, told the Register that the Carhart decision, upholding the Partial-Birth Abortion Act of 2003, radically changes the playing field by presuming in favor of at least modest restrictions on abortion.

“We’ve gone from a posture of presumption against every abortion regulation to a presumption in favor of its validity,” said Kmiec.

Roberts’ Influence

In previous cases, even the smallest restrictions on abortion were subjected to a standard that legal scholars call “close scrutiny” — essentially a presumption that such restrictions should be struck down absent overwhelming evidence to the contrary. The Carhart decision adopts instead the so-called “rational basis” standard, allowing restrictions on abortion that make sense from the point of view of the government’s interest in preserving human life in the womb.

“It’s a very positive sign,” said Kmiec, who found it especially important that Kennedy wrote that the partial-birth abortion ban “is not invalid on its face” just because a theoretical case may exist in which a partial-birth abortion might be marginally safer for the “health of the mother.” Kennedy wrote that case-by-case challenges to the law could be entertained if such a medical case ever actually arises, but that this was no reason to strike down the law altogether.

“This gives states considerably more latitude to regulate on behalf of the unborn child, and to have that regulation actually operate for at least a period of time without being enjoined or ensnared by litigation,” said Kmiec.

Justices Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito endorsed the majority opinion, along with Chief Justice John Roberts. These five also happen to form the court’s first-ever Catholic majority.

Kmiec said that the decision reveals part of the underlying dynamic within the high court under its new chief justice, who was appointed in 2005 by President Bush. “It indicates the persuasiveness and effectiveness of Chief Justice Roberts in bringing Justice Kennedy back in the direction of the preservation of human life,” said Kmiec.

Kennedy, appointed by President Ronald Reagan in 1988, had been billed as a pro-life Catholic, but he later voted in the Casey decision to uphold the 1973 Roe v. Wade decision, which struck down nearly all restrictions on abortion in the United States. The files of former Justice Harry Blackmun, unearthed in 2004, showed that Kennedy initially voted to overturn Roe v. Wade, but had been persuaded to go the other way. Kennedy did, however, dissent from the decision that struck down Nebraska’s ban on partial birth abortion in 2000.

The decision prompted a swift negative reaction from supporters of legalized abortion. All three Democratic presidential candidates — Sen. Hillary Clinton of New York, Sen. Barack Obama of Illinois and former North Carolina Sen. John Edwards — soundly denounced it.

“Let’s be clear,” Clinton said in an e-mail to supporters April 19. “This allows the government to dictate to women what they can and cannot do about their own health.”

Even the dissenting opinion on the court was “harsh and strident,” Kmiec said. Justice Ruth Bader Ginsburg, writing for herself and the three other justices, argued that abortion legalization is necessary for “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”

“The proposition that the abortion right is needed to vindicate a woman’s right of equal citizenship seems to me a non sequitur,” said Kmiec.

The reaction was so immediate and visceral that even Sen. Harry Reid, D-Nev., who had actually voted in favor of the abortion ban in 2003, at first denounced the court decision upholding it in a Democratic leadership press conference, stating that he preferred the pro-abortion vote of former Justice Sandra Day O’Connor, whom Justice Alito replaced last year.

“I would only say that this isn’t the only decision a lot of us wish that Alito weren’t there and O’Connor were there,” Reid said, standing with House Speaker Nancy Pelosi, D-Calif., a strong proponent of legal abortion.

Reid’s spokesman, Jim Manley, offered little explanation in his response to the Register’s inquiries about this unusual statement.

“It’s no surprise that he prefers O’Connor to Alito,” Manley said on the day the decision was handed down. Manley would not speak directly to whether Reid agreed with the court’s decision upholding the same law that Reid had voted for in 2003. “He has not had a chance to look at it,” Manley said. “However, the senator prefers building consensus when it comes to limiting the number of abortions.”

Cella said that although the new decision is limited in scope, the new court, which includes Bush appointees Alito and Roberts, could go further in the future.

“Perhaps if the Casey decision were to be revisited one of these days, we would have another victory for the protection of unborn children and their mothers,” he said.

Also included in the ruling was a one-paragraph concurrence, signed only by Scalia and Thomas, stating that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.”

Neither Cella nor Kmiec were concerned about the fact that Alito and Roberts, the newest members of the court making their first abortion decision, did not sign on to this concurrence. “It’s nothing more than a reflection of their very measured approach to jurisprudence,” said Cella.

Said Kmiec: “I don’t think it tells us whether the chief justice and Justice Alito also subscribe to the Thomas and Scalia view.”

David Freddoso

writes from Washington.

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