In upholding the federal ban on partial-birth abortion in Gonzales v. Carhart the U.S. Supreme Court has made a significant course correction in the very erratic path of abortion law.
For the first time since Roe v. Wade the court has upheld a law banning a specific (and particularly heinous) abortion method. That result alone, however, does not amount to much.
Abortion remains legal throughout pregnancy. A doctor performing late-term abortions still has two commonly-used methods to choose from — killing the child by tearing off her limbs piecemeal or injecting digoxin to cause a fetal heart attack while the child is still in the womb.
Doctors now are simply foreclosed from intentionally delivering a living child partly outside the mother’s body before committing an act that kills the child.
In the 1992 Planned Parenthood v. Casey decision, the court said that states have a “legitimate and substantial interest in preserving and promoting fetal life,” and even admitted the court had gone too far in denying states’ leeway in regulating abortion. But the Court seemed to forget this in its next major abortion decision, Stenberg v. Carhart, the 2000 ruling striking down Nebraska’s partial-birth abortion ban, ignoring the promise of Casey and further expanding the abortion license to defend the killing of the partly-born child.
Now, by upholding the federal ban on partial-birth abortion, the court demonstrates that its promise in Casey might actually mean something.
Gonzales v. Carhart (“Carhart II”) breaks away from the expansive majority and concurring opinions in Stenberg v. Carhart (“Carhart I”) in at least five ways that bode well for the future of abortion law.
1. The high court called abortion “killing.”
Prior Supreme Court opinions have not been candid about abortion. For example, they refused to concede that abortion kills a living human being. Unwilling to state when life begins, some justices referred to children before birth only as “potential life,” and called abortion “termination of pregnancy.” Carhart I used obscure Latin words to sanitize the deed — calvarium for skull and disarticulation for tearing off limbs.
In Carhart II, the court lifts the veil, repeatedly acknowledging the humanity of the unborn child. The ruling refers to the prenatal human as a “child” and an “infant,” and calls abortion “killing.”
2. The Court acknowledged the state’s interest in protecting the unborn.
Some Justices in Carhart I refused to give much or any weight to Nebraska’s stated interest in preserving unborn life. In their view, banning partial-birth abortion (they called it “PBA”) would not prevent other equally gruesome abortion methods (of which they approve). They claimed Nebraska’s real motive was therefore an improper one: moral revulsion.
While it does not overrule Roe, Carhart II emphatically reaffirms the state’s interests in showing “its profound respect for the life within the woman,” and in protecting the life of the unborn child “from the inception of the pregnancy.” Carhart II also reaffirms the state’s interest in “protecting the integrity and ethics of the medical profession,” implying correctly that partial-birth abortion erodes both.
3. Justices ended the usual deference to medical claims of abortion doctors.
Roe v. Wade forbade prohibiting abortion before viability and mandated that every attempt to prohibit abortion after viability include a “health exception.” This, in effect, nullifies the law, because every abortion-minded woman arguably presents some “health” factor, broadly described by the court as including “all factors” — emotional, “familial,” age and so on — related to “well-being.” Later decisions expanded the use of the health exception by demanding its inclusion in statutes that merely regulated some aspect of abortion, such as laws requiring parental notice. Carhart I even claimed that an abortion method some doctors think might have a marginal health benefit over other methods cannot be prohibited.
Carhart I concluded that when medical authority is divided on the alleged health benefits of partial-birth abortion, the court is right to favor the “substantial medical authority” advocating a “women’s health” reason for the abortion.
Carhart II upends this presumption in favor of abortion businesses, allowing lawmakers greater leeway to enact laws according to what they reasonably conclude is the best evidence.
4. The court stops use of hypothetical harm to block entire abortion laws.
The Supreme Court has always permitted individual abortion businesses and industry groups to challenge entire abortion regulations “on their face” on behalf of their patients. Suits to enjoin enforcement of abortion laws are typically filed the day the law would have taken effect. Pro-abortion plaintiffs argue that if the law were in force, a hypothetical future patient could be irreparably harmed while waiting for a court to find the law unconstitutional as applied to her own situation.
Outside the abortion context, preliminary injunctions against laws are usually granted only when challengers establish that “no set of circumstances exists under which the [law] would be valid” — a very high hurdle. When it comes to abortion cases, however, such rules were thrown out in favor of those benefiting abortion doctors. Challengers have successfully blocked laws for years, merely by presenting a court with the hypothetical and sometimes far-fetched circumstances of a fictional plaintiff.
Carhart II states that where medical uncertainty exists, facial challenges should not be entertained. A facial challenge is a manner of challenging a statute in court, in which the plaintiff alleges that the statute is always, and under all circumstances, unconstitutional, and therefore void. Instead, a doctor should sue only to prevent the law’s application to actual women whose health he can prove would be compromised by the law.
5. The court read the statute to mean what it says.
Courts reviewing abortion laws have also favored abortion industry plaintiffs in the way they interpret the language of statutes. In other legal contexts, language in a statute is understood according to its common meaning.
If the law would be constitutional under a plausible interpretation of the statutory language, the court gives lawmakers the benefit of the doubt and assumes they intended to convey the constitutional meaning.
With abortion laws, however, plain phrases have often been twisted to create vagueness and confusion where none exists. Carhart I, for example, strained to twist Nebraska’s definition of partial-birth abortion to claim it was vague and overbroad.
Thankfully, Carhart II examined the federal ban in a common-sense way, interpreting it as banning only what it clearly describes.
What does all this mean for the future? In the negative column, Roe and Casey are left standing in Carhart II. But if the court means what it says in Carhart II, we can expect it to uphold more state and federal laws regulating abortion. For example, the court may now uphold laws on parental involvement without phony health exceptions, or on informed consent — giving truthful information about fetal pain, the abortion-breast cancer link, the risk of subsequent preterm births or the child’s characteristics as shown by an ultrasound image before the abortion.
The court’s new candor about unborn life and abortion and its apparent increased willingness to uphold reasonable regulations may open up many opportunities to foster greater respect for life and discourage abortion, even while Roe and Casey stand.
Susan Wills is associate director
for education for the U.S.
Conference of Catholic Bishops’ Secretariat for Pro-Life Activities.