THE arguments the Supreme Court will hear on Wednesday on the constitutionality of the federal Partial-Birth Abortion Ban Act promise much more than a resumption of a familiar debate over a method of terminating a pregnancy.
In defining the permissible limits on access to abortion, only six years after declaring a similar restriction unconstitutional in a case from Nebraska, the court must go a long way toward defining its stance toward precedent, its relationship to Congress, and its view of its own role in the constitutional system. As it decides the new cases, the still-emerging Roberts court will inevitably be defining itself.
That much is clear from briefs submitted to the court by the abortion rights side, where many believe that their only hope of prevailing lies in persuading Justice Anthony M. Kennedy to reconsider the position he took in an emotionally laden dissenting opinion in the Nebraska case. Justice Kennedy said then that states should be able to outlaw “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”
Justice Sandra Day O’Connor, who retired in January, voted with the 5-to-4 majority. No one knows whether either of the two newest justices, her successor, Samuel A. Alito Jr., or Chief Justice John G. Roberts Jr., might step into her shoes. But the fate of the federal law may rest with Justice Kennedy, the only one of the four dissenters who accepts the court’s precedents on the basic right to abortion.
Several arguments are clearly, if implicitly, addressed to him, aimed at shifting the focus away from an abortion technique and toward broader jurisprudential issues in which Justice Kennedy is deeply invested.
For example, the federal law is depicted as an example of Congressional defiance of the court’s authority to interpret the Constitution. The law lacks the exception for a pregnant woman’s health that the court held in the Nebraska case to be constitutionally required; Congress simply declared that the procedure was never necessary.
Justice Kennedy is perhaps the leading expositor among the current justices of the court’s primacy in constitutional interpretation. He wrote the landmark decision in 1997 that rejected Congress’s effort in the Religious Freedom Restoration Act to trump the court’s view of the First Amendment’s “free exercise” clause.
And several briefs quote from Justice Kennedy’s majority opinion in Lawrence v. Texas, the 2003 gay rights case, to the effect that the government may not adopt one view of morality and invoke it to criminalize the private choices made by those who take another view.
The libertarian Cato Institute, which provided intellectual ammunition for the Rehnquist court’s federalism revolution, filed a brief describing the federal law as an example of “expansive and intrusive federal regulation” and as an effort by Congress to open “an equilibrium-destroying loophole in the constitutional landscape.” Justice Kennedy has consistently voted with the states’ rights side of the court’s federalism debates.
Three federal appeals courts have considered the federal law, and all three have declared it unconstitutional on the basis of the Nebraska decision.
The court is hearing the Bush administration’s appeal of two of those rulings. The administration argues that the federal law and the Nebraska ruling can coexist if the court recognizes an obligation to defer to Congress’s judgment that a health exception is unnecessary. But if the court finds otherwise, Solicitor General Paul D. Clement will argue, then the Nebraska precedent, not the federal law, should fall.
Both sides’ briefs reveal an interesting role reversal on the basic factual question of how common the procedure outlawed in the law actually is.
Leaders of abortion rights groups, caught by surprise when the National Right to Life Committee first publicized the procedure, known medically as “intact dilation and evacuation,” initially said it was very rare.
But now, medical organizations and medical school professors who have filed briefs attacking the law say that in fact, doctors performing abortions in the second trimester, when about 10 percent of all abortions take place, often try to remove the fetus in as intact a condition as possible. The goal is to avoid complications caused by the repeated insertion of surgical tools and by sharp bone fragments that can injure the patient internally.
The doctors say it is not always possible to tell in advance whether intact removal can be achieved, or whether the process of extraction will dismember the fetus. In any event, they say, intact and “disarticulated” abortions are “part and parcel of the same procedure,” meaning that doctors could not know when they might be placing themselves in legal jeopardy.
Abortion opponents are now the ones who describe the procedure as rare, seeking to offer reassurance that banning it would not deprive women of access to safe second-trimester abortions.
In fact, in their eagerness to portray the procedure as aberrant, the statute’s sponsors declared in the preamble that “no medical schools” teach it. In fact, it is taught at leading medical schools including Columbia, Cornell, Yale and New York University.
The administration describes the law as taking “only the limited step of proscribing a rarely used and inhumane abortion procedure resembling infanticide.”
“Infanticide” is a potent label, frequently used by abortion opponents. One brief describes the procedure as “killing a child in the birth process.” While this description is true in the sense that uninterrupted gestation leads to birth — “He not busy being born is busy dying,” in the words of the Bob Dylan song — it is well off the mark as a description of what actually occurs.
The standard procedure used by Dr. Warren M. Hern, the author of a widely consulted textbook on abortion and one of the leading providers of abortions after 18 weeks of pregnancy, is to “induce fetal demise” by injecting a drug one or two days before the abortion.
“The cognitive construct of the law has nothing to do with current medical practice,” Dr. Hern, who is not involved in the cases, said last week.