The Court’s decision today to uphold a “partial birth abortion” ban in Gonzalez v. Carhart has been 21-years in the making. Regan-ites Antonin Scalia and Anthony Kennedy joined forces with Thomas, Alito, and the Chief Justice to combat the forces of liberalism that are ever-present in our society. Conservatives have to be pleased with Justices Kennedy’s swing to the right (conservative) side of the Court on this case. Justice Souter secured his position as the greatest conservative disappointment on the Court since Earl Warren with his vote in the dissent.
The loss of Sandra Day O’Connor has never been more clear than now. Her opinion in Akron v. Akron Center for Reproductive Health helped to establish the ‘undue burden’ test, which stipulates that legislators may not place an ‘undue burden’ on a women’s right to have an abortion in an effort to get around Roe. She furthered the same test in Planned Parenthood v. Casey and Stenburg v. Carhart
Justice Kennedy penned an opinion that chooses not to take on many of the most controversial issues before the Court. Here is how he addresses the Court’s decision to ignore the Act’s lack of protection for the health of the woman:
The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.
He later addresses the rigidness of the ‘undue burden’ test:
[T]he Court’s opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception if “substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.” Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty… A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. The Act is not invalid on its face … given the availability of other abortion procedures that are considered to be safe alternatives.
Justice Thomas wrote a brief concurring opinion that is reprinted here IN ITS ENTIRETY (sans internal citations):
I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey. I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution. I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
It seems as though with his concurring opinion Thomas just wants to look like a hardcore conservative. Thomas has always been more than willing to tell the entire world what he thinks, regardless of whether or not the rest of the majority feels the same way.
Ginsburg authors a scathing dissent against the Court that features this as the second to last paragraph in its abstract:
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
Ginsburg’s dissent takes full advantage of footnotes (at one point she used up an entire page writing a footnote to something on the previous page) and very thoroughly bashes the conservative wing of the court:
The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor”.
Ginsburg’s dissent is, well, a dissent, so she is free to speak her mind without any serious repercussions. I would be interested to see the rational and wording she would have used had she penned a majority opinion.
Ultimately, this case will not be the final one in a long series of abortion-cases. The Court gave only a very flimsy defense of the Partial Birth Abortion Act and also chose to criticize some of the merits of the method in which the case was brought before it.