Thursday, April 19, 2007

Does This Abortion Decision Matter?

The Opinionator

The Los Angeles Times editorial on the Supreme Court decision upholding the federal Partial-Birth Abortion Ban Act includes a sentence that suggests Gonzales v. Carhart ultimately doesn’t mean very much for either side of the abortion debate: “This muddled decision doesn’t attack the basic holding of Roe v. Wade, and it will have no effect on the vast majority of abortions performed in this country.”

Pro-life “Crunchy Con” Rod Dreher, however, finds it significant: “For the first time in, I dunno, two years, I’m feeling good about my 2004 vote for Bush,” Dreher, a columnist for The Dallas Morning News, writes on his Beliefnet blog.

Ed Kilgore of the Democratic Leadership Council thinks the long-run result of the decision will be to affirm the basic constitutional right to abortion. “There’s no question that the majority opinion erodes some of the underpinnings of how the federal courts have applied Roe and Casey. And it opens the door to further abortion restrictions,” Kilgore writes at TPM CafĂ©. “But on the basics, this decision may prove to be a pyrrhic victory for the anti-choice forces. Every time the Roberts Court validates a technical and largely marginal exception to abortion rights by claiming to respect abortion rights, it will become more difficult to overturn those rights altogether.”

But Lyle Denniston of SCOTUSblog thinks the decision is not a narrow one. He says it is “on a par, historically, with Roe v. Wade.” Gonzales vs. Carhart “guarantees that new lawsuits will spring up, perhaps in only a matter of days, to test whether anything remains legally and practically speaking of the constitutional right to abortion,” Denniston writes. It also “guarantees that state legislators across the nation will be actively at work finding ways to curb abortion rights earlier and earlier in pregnancy, perhaps from the moment of conception.”

Denniston concedes that “there is no early prospect that Roe v. Wade will be overturned, as long as the present Justices sit (Justice Anthony M. Kennedy clearly does not want to be the author of an opinion doing so, and thus there is no chance for five votes for that),” but he adds that “the narrowing of that decision will be more fervently pursued now with the impetus of Gonzales v. Carhart.”

The decision marks “a new generation of abortion jurisprudence,” Denniston says. He adds:

[F]etal viability – the point at which a fetus could survive outside a woman’s body – has lost most of its [significance] as the entry point for significant government regulation of abortion procedure. This makes it more likely that regulation earlier in pregnancy will be more acceptable to the Court, because a government interest in fetal life from the moment of conception is now enhanced. (Kennedy saw that interest as the main legacy of the Court’s ruling in 1992 in Planned Parenthood v. Casey – the decision that rescued most of Roe v. Wade from incessant attack.)

Yale law professor Jack Balkin objects that the decision in Gonzales vs. Carhart doesn’t achieve the Court’s stated goal of protecting fetal life. He writes on the group legal blog Balkinization:

[T]he Court emphasizes Casey’s holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus’ life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

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