Roe v. Wade Affirmed Again

The real math in the Supreme Court is still 7-2

I make it a rule never to comment on a Supreme Court decision until I have actually read the court's opinions, or at least the syllabus (that's a sort of final rough draft released before publication). They are easily accessible at www.supremecourtus.gov, by clicking on OPINIONS and then the name of the case.

Now I have read Gonzalez v. Carhart, the decision which upheld the constitutionality of the federal law banning the so-called "partial birth abortion" procedure, better known among physicians as Intact Dilation and Evacuation, or Dilation and Extraction. While the media rushes to extract a sound byte and a quick headline, while advocacy groups rush to celebrate or bewail the decision, it turns out the Supreme Court acted with the deliberation of a court. What has changed? Darn little.

The court has no jurisdiction to determine whether abortion is a morally good thing, a morally bad thing, or a morally ambiguous thing. With the possible exception of a catatonic note from Justice Thomas, the court stayed within its proper jurisdiction as a court. It examined whether this particular challenge to this particular law was legally sound. Federal courts have a guiding principal that if there is any reasonable interpretation of a law that would make it constitutionally acceptable, courts will adopt that interpretation. The court did so, and in doing so it has ruled out most of the dangers feared by the original plaintiffs who asked for injunctions against the law's enforcement.

The court didn't even say that Congress used good judgment in passing the law, only that, good law or bad law, it was within the discretion of Congress to adopt it. Alexander Hamilton and James Madison both wrote in The Federalist Papers that if the legislature exceeds the powers granted to it by a constitution, it is the duty of the judiciary to declare such law null and void. The Supreme Court carefully considered whether this was such a law. By prudently trimming the possible applications of the law, a majority of five justices found that it was not.

There can be little doubt that the authors of this law hoped to open the door to a series of chilling prosecutions of doctors who perform abortion, stretching the law to leave physicians in genuine doubt about what they would or would not be arrested for. There is no doubt that there are a certain number of U.S. attorneys and state prosecutors who were slobbering to do exactly that. In order to find the law constitutional, the court had to slam that door shut. They did. Any doctor who is prosecuted for anything but an overt and deliberate violation of very specific rules has only to cite the court's ruling and majority opinion to get the charges dismissed.

It is important to keep in mind that by the explicit terms of Roe v. Wade, any state may prohibit abortions during the third trimester, unless the life or health of the pregnant woman concerned are in danger. I can't think of any state that has not done so. As the court majority noted, between 85 and 90% of abortions performed each year in the United States occur during the first trimester, and most of the rest during the second trimester. Abortions in the third trimester are almost always performed precisely because the mother's life is in danger. In effect, her baby is killing her. Orthodox Jewish law, for one, absolutely mandates abortion in this circumstance. (There have been times and places where Roman Catholic priests have openly demanded that the mother must die in order to save her baby.) It comes down to a choice between the mother's life or the baby's. To save the mother the baby will be destroyed.

Whether it is called partial birth abortion or dilation and extraction, if the mother's life is in danger, the law explicitly allows this procedure to be used. As narrowly interpreted by the court majority, as long as the head of the fetus is not actually outside of the birth canal, the procedure is perfectly legal to protect the mother's health also. Just don't let the head get out of the mother's body. The difference between a Nebraska law overturned in Stenberg v. Carhart and the current federal law is that the current law provides very specific benchmarks. The Nebraska law referred only to whether "a substantial part" of the fetus was delivered out of the uterus, not even out of the mother's body.

The real math on this ruling is unchanged since Roe v. Wade. Two justices favor overturning Roe, the perennial Thomas and Scalia. Seven justices rely on Roe and the cases that rest on Roe as decided law. They just disagreed on the details. Congress said that in passing the law, it was attempting to "draw a bright line that clearly distinguishes between abortion and infanticide." Those who call themselves "pro-life" have claimed that there is NO line that distinguishes between abortion and infanticide, but Congress said with a straight face that it was drawing one, and the Supreme Court took them at their word.

In that light, Justice Ginsburg's dissent waxes a bit hysterical at times. There is nothing particularly alarming about the net impact of the majority ruling. The full and independent legal status of women under the constitution is not threatened. But she makes some good points. The factual findings on which Congress based the law indeed "do not withstand inspection" and "many of the Act's recitations are incorrect." That is a polite way of saying that the congressional authors either lied to the American people, or were ignorant to the point of gross incompetence. Or perhaps they were just "factually challenged." In specific, there is no medical consensus that the procedure is never necessary, and there are in fact many medical schools which provide training in how to perform it.

It is probably true that if Justice O'Connor were still on the court, instead of Justice Alito, the 5-4 decision would have tipped the other way. But in practical terms, it wouldn't have made much difference. Otto von Bismarck once remarked that no one should see how laws or sausages are made. Here we have a good example of how laws are made. Everyone is tip-toeing around what they really want to accomplish. Everyone is using bland language and logic that may be quite different than what each justice would really like to say or to accomplish. But the result is not at all bad. A court can't make law, it can only interpret law. Five justices wanted to save this law from being overturned, and they did so in a proper legal manner. By the time they were done, there wasn't much impact left to the law they upheld. They even, quite properly, left the door open that a woman with a specific set of facts could go to court and seek an injunction against the law as it applied to her individual situation.

It was a good conservative decision, by justices determined not to be judicial activists. There are only two judicial activists on the court right now, Scalia and Thomas. But the most they could get was to go along with this ruling. It was a good day for the majesty of the law.