Gonzales vs. Carhart, today’s Supreme Court decision upholding the Federal “Partial Birth” abortion (PBA) ban,1 is a terrible decision for freedom and for women in many ways. But the most destructive element of the Court’s decision is a relatively obscure argument buried deep in Kennedy’s decision.
From Kennedy’s decision:
This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. […]
As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.
What Kennedy is saying here is that if pro-lifers pass an abortion ban without any health exception, then women can successfully sue to have the ban overturned only in “as applied” cases. So a ban might not be illegal generally, but it still might be illegal in the case of Betty Smith of Memphis, who might be able to convince a court the ban “as applied” to women with her specific health circumstances is unconstitutional because it threatens her health.
But even if one lawsuit is successful in overturning the law “as applied” to the particular person who sued, the law could still apply to other women in other circumstances – meaning all those women would have to sue individually if they think the law is unconstitutionally being applied to them. The net effect could be to make it much harder for pro-choice activists to get Courts to consider whether or not new abortion-related laws are Constitutional.
So let’s say that Betty Smith has uterine scarring, and can convince a court for health reasons that the PBA ban is unconstitutional as applied to her and other women with her exact health conditions. That does nothing at all for Judy Jones, who has placenta previa; Judy has to initiate a whole new lawsuit regarding if the PBA bas is constitutional “as applied” to people in her condition.
This is what Jack Balkin was referring to when he wrote, in 2005, “Courts now enjoin new abortion laws as soon as they are passed if they burden some women’s right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.”
In her excellent dissent, Justice Ginsburg points out that Kennedy’s decision, while claiming to uphold previous decisions, in fact overturns the Court’s previous standards, and also ignores the basic purpose of requiring health exceptions:
Without attempting to distinguish Stenberg and earlier decisions, the majority asserts that the Act survives review because respondents have not shown that the ban on intact D&E would be unconstitutional “in a large fraction of relevant cases.” Ante, at 38 (citing Casey). But Casey makes clear that, in determining whether any restriction poses an undue burden on a “large fraction” of women, the relevant class is not “all women,” nor “all pregnant women,” nor even all women “seeking abortions.” Rather, a provision restricting access to abortion, “must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction.” Thus the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk. Cf. Stenberg, (accepting the “relative rarity” of medically indicated intact D&Es as true but not “highly relevant”—for “the health exception question is whether protecting women’s health requires an exception for those infrequent occasions”); Ayotte, (facial challenge entertained where “[i]n some very small percentage of cases … women … need immediate abortions to avert serious, and often irreversible damage to their health”).
It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.
Ginsburg also points out that it’s ridiculous to expect that women facing immediate health decisions involving pregnancies are going to be able to put their distressed pregnancies and medical emergencies on hold in order to sue the United States government (a process that takes years). “Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman ‘suffer[ing] from medical complications’ needs access to the medical procedure at once and cannot wait for the judicial process to unfold.”
Of course, it’s impossible to know for certain how this will play out in practice. But this aspect of Gonzales is the most frightening, and contains the most potential to destroy abortion rights in practice.
In short, this is some scary, anti-freedom shit, buried on page 37 of a 39 page decision.