Abortion Conundrums

Last month’s 5-4 U.S. Supreme Court decision (Gonzales v. Carhart) upholding the Partial Birth Abortion Ban Act of 2003, which prohibits a procedure used each year in three to five thousand late-term abortions, was greeted with predictable outrage by abortion-rights activists and their supporters in the Democratic Party. Many saw the ruling as a step toward overturning Roe v. Wade. Yet like everything having to do with abortion, the Court’s decision was more complicated than that.

Much of the initial reaction to the decision was driven by Justice Ruth Bader Ginsburg’s fiery dissent to Justice Anthony Kennedy’s majority opinion. Ginsburg accused the Court of ignoring its own precedents in Roe and Planned Parenthood v. Casey by upholding a law that banned an abortion procedure without providing an exemption to ensure the health of the woman. In doing so, the majority deferred to the determination made by Congress-one Ginsburg scathingly dismissed-that there was little medical evidence that “partial-birth abortion” is ever necessary to protect a woman’s health. At the same time, however, the decision left room for a future challenge to the law should a specific case be brought forward establishing that the procedure is medically necessary to protect a woman’s health.

Much of the significance of the ruling may turn on a technical aspect of the law having to do with what are called “facial,” as opposed to “as-applied,” challenges to the constitutionality of a statute. Historically, the Court has overturned on a “facial” basis most attempts to restrict access to abortion. In Carhart, however, a potentially dramatic, if limited, change has taken place in how the Court approaches abortion regulation. It now appears that the Court is willing to examine restrictions or regulation of abortion on an “as-applied” basis. “The idea,” writes Benjamin Wittes in “Winner Takes Some” (New Republic Online), “is that a law that’s constitutional most of the time should not be invalidated because one can imagine circumstances in which its enforcement would violate someone’s rights.”

What this seems to mean is that the Court may permit further regulation. For example, several states have passed laws requiring a pregnant woman to view a sonogram of her fetus before she can have an abortion. Since viewing a sonogram is unlikely to endanger a woman’s life or health, or to impose, in Casey’s terms, an “undue burden” on her access to abortion, such requirements would probably be judged constitutional in light of Carhart.

Making Carhart even more complicated, however, is that the decision further embeds the principles of Roe in the Court’s jurisprudence. Like Casey, this opinion strongly reaffirms a woman’s fundamental constitutional right to an abortion, even as it seems to reinterpret the scope of Roe’s stipulation that the state has a legitimate interest in regulating access to late-term abortions as long as such regulation does not impose an undue burden.

What will be the political consequences of the decision? As Cathleen Kaveny wrote in our last issue (“Regulating Abortion,” May 4), the ruling promises to extend the “abortion wars” for decades to come. (Especially disappointing in this regard was the knee-jerk and short-sighted reaction of all the Democrats running for president.) An alternative, Kaveny wrote, is to “design a law that prohibits a range of late-term abortions, which at the same time includ[es] a clear and defined health exception.”

That makes sense. Despite the extreme polarization between the political parties on abortion, there already exists a national consensus on the issue. Most Americans think that second- and especially third-trimester abortions should be largely prohibited. At the same time, while most Americans think abortion is rarely a good choice, they think that during the first three months of pregnancy, abortion should be an individual woman’s decision. Abortion-rights activists, however, refuse to compromise on a “woman’s right to choose,” while many in the prolife movement insist that abortion be outlawed in almost every instance.

For now, neither of these views is politically or legally tenable. Because of the respect rightly accorded to the moral autonomy and physical integrity of every individual, society is hesitant to police pregnant women. Still, it is important that the law clearly teach that a woman’s autonomy is not absolute when it comes to abortion. Of course, the law can do only so much. Any meaningful reduction in the number of abortions depends on our ability to persuade women that abortion is almost never necessary. Part of that effort at persuasion should include the guarantee that the basic material needs of every child brought into this world will be met. Still, as an expression of society’s rejection of an unlimited abortion franchise, Carhart is a small step in the right direction.

May 8, 2007

Published in the 2007-05-18 issue: 
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