High Stakes For High Court's Decision

This column was written by Scott Lemieux

The answers are 1) absolutely, 2) probably not, thanks to the American electorate catching on to George W. Bush two years too late, and 3) more than you might think.

The legislation bans Dilation and Excavation (D&X) abortions, in which a fetus is delivered whole into the vaginal canal before the abortion rather than being dismembered in the womb. (There is actually a serious argument that the legislation is sufficiently vague as to encompass many abortions performed by the more common Dilation and Extraction, or D & E, method, by far the most common procedure for second-trimester abortions. In order to prevent the following analysis from becoming more arcane than necessary, I will assume for the sake of argument that the legislation will be construed only to apply to the D&X procedure.) The statute makes no distinction between pre- and post-viability fetuses, and also contains no exception for doctors who believe the procedure is necessary to protect the health of the mother. The law instead asserts that the D&X procedure is "never medically necessary."

Based on the court's existing precedents, this bill should clearly be struck down. Planned Parenthood v. Casey held that the state cannot regulate abortion in a way that constitutes an "undue burden" on a woman's right to choose, and Stenberg v. Carhart struck down a similar state statute as being inconsistent with Casey. As Justice Stevens held in the latter case, the law is so arbitrary it's not clear that it would be constitutional even if abortion wasn't a fundamental right. It is far from clear what rational connection the legislation -- which, as Richard Posner has pointed out, bans an abortion procedure based on which way a fetus's feet are pointing -- bears to any legitimate state interest. Certainly it is not in any way related to the protection of fetal life. At oral argument, Solicitor General Paul D. Clement himself conceded "no woman would be prevented from terminating her pregnancy" because of this law. Moreover, to the extent that it has an impact on woman's health, it's a negative one.

Meanwhile, Roe and Casey clearly require a health exemption for a regulation such as this law, and the findings that Congress adduced to claim that the D&X was never medically necessary are, as both District Courts found, blatantly erroneous. And if the "undue burden" standard means anything at all, surely it proscribes legislation wholly unconnected to the preservation of fetal life or a woman's health, and that in fact places women's health at risk for the sake of sheer symbolism or political strategy. In Judge Posner's words in Hope Clinic v. Davis, "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."

But, alas, it is highly unlikely that the Court will strike down the law. While the bill passed by Congress is almost identical to the Nebraska statute struck down in Stenberg, changes in court personnel make its application in this case quite unlikely. Stenberg was a 5-to-4 decision, with Justice O'Connor joining the four more liberal justices (while Justice Kennedy, who joined Casey, wrote an emotional, bitter dissent.) O'Connor's replacement, Samuel Alito, is as clearly opposed to reproductive rights as a justice could be and still be confirmable. Unless Kennedy switches his vote -- which would be unlikely, given the nature of his dissent and the similarity of the laws -- or Chief Justice Roberts replaces his predecessor's dissent by voting to strike down the law -- which would be a major upset -- the law will be upheld as consistent with the "undue burden" standard and Stenberg will be overturned either directly or sub silento . Five votes will still remain to uphold Casey. If the law is upheld, however, it is not certain whether the Court will overturn the health exemption; claim that the health exemption doesn't apply; or (as Roberts has hinted) leave open the possibility for an "as applied" challenge, if a doctor can prove that the procedure is medically necessary.

While one woman forced to endure a greater risk to her health for an utterly silly law is too many, one might reasonably ask -- given that the case will not be used to overturn Roe -- how much it actually matters whether Stenberg is affirmed. Here's the answer: Any of the legal rationales for upholding the law contain doctrinal time bombs that could seriously undermine reproductive rights in future cases.

If the Court overturns the health exemption, this will deal a body blow to Casey, giving states hostile to abortion much more leeway to legally harass doctors and patients in ways likely to have a chilling effect on abortion providers. (Remember that D&X abortions are not limited to post-viability abortions.) If the Court gives a free pass to legislatures that make bogus medical claims to evade the health exemption requirement, as the drafters of Federal Partial-Birth Abortion Act did, this will have the same effect with an extra layer of dishonesty added on top. (It will also send a signal to legislatures that the Court will not scrutinize the motives and consequences of abortion regulations with any seriousness, further diluting the "undue burden" restriction.) If, alternatively, the Court upholds the law pending "as applied" challenges, this will make challenges to abortion laws much more difficult and expensive, exacerbating the class inequities already present in abortion access.

And irrespective of the precise rationale the Court ends up citing, the larger problem is that, because the distinction between D&X abortions and any other procedure is wholly arbitrary, legislatures can invent further distinctions and continue to tie the hands of abortion doctors. As Eve Gartner, the lawyer representing Planned Parenthood, put it during the oral argument, "to allow such an expansion of pre-viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion, until truly there would be nothing left at all of Casey's holding that it is unconstitutional to ban second-trimester abortions."

Partial-birth abortion bans involve inventing a scary-sounding but scientifically meaningless term, applying it to an abortion procedure morally indistinguishable from any other, and using the legislative results as a Trojan Horse to undermine popular judicial protections of a woman's right to choose. They are the ultimate example of the increasing cynicism and emptiness of the leadership of the American "pro-life" movement, and the crass exploitation of its rank-and-file by Republicans (and too many Democrats) happy to use the issue to mobilize the base as long as the access to abortion of women in their social milieu aren't affected. Congress is employing rank dishonesty to play political games with the lives and bodies of American women. The Supreme Court may not end up telling it to stop, but it certainly should.

Scott Lemieux is an assistant professor of political science at Hunter College, CUNY, and writes for the blog Lawyers, Guns, and Money.

By Scott Lemieux
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved