[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

What is one to make of the Supreme Court’s 5-to-4 decision on April 18 in Gonzales v. Carhart, in which it upheld the Congressional statute banning partial-birth abortion? 

Some observers criticized Roberts and Alito for deviating from their testimony during last year’s confirmation hearings before the Senate Judiciary Committee.  This criticism asserted that they had pledged to be bound by precedent, but had ignored a prior Supreme Court case, Stenberg v. Carhart (2000).  But as will be discussed below, the whole question is what prior precedent of the Supreme Court means.   And, of course, no Supreme Court justice has ever agreed to be bound by cases that were originally wrongly decided.  Any nominee who made such a pledge would be unfit for the job.  The job of a justice is to decide what the law demands, and that includes existing precedent, but the Constitution itself is the supreme law and all other law must be consistent with it.  Thus, a court decision (or statute) inconsistent with the Constitution should be overturned.  (Some observers also criticized all 5 justices in the majority because they are Catholics, suggesting they made their decision because of their religious faith.  Anyone who made that charge should be ashamed.  No one is disqualified in America from public office because of their faith.  And no one can read the Court’s opinion and find any traces of “imposing Catholicism.”  In truth, such attacks have no place in our democracy.  If someone disagrees with the Court’s opinion, it is up to them to present a convincing challenge to its legal reasoning.)

Justice Anthony Kennedy wrote the majority opinion.  Justice Kennedy had been the co-author of the “plurality opinion” in an important Supreme Court case about abortion, Planned Parenthood v. Casey, decided fifteen years earlier in 1992.  In that case, the votes of the justices who authored the plurality opinion (Kennedy, David Souter and Sandra Day O’Connor) had been critical to upholding a “right” to abortion.  Since there was no majority vote in that case, it was necessary to divine what the three authors of the “plurality” opinion (who would provide the “swing vote” in subsequent abortion cases) intended Casey to mean.  However in the succeeding years, there was disagreement, even at the Supreme Court, as to its meaning.

Therefore, the meaning of Casey was central to the Court’s opinion in Gonzales v. Carhart, and Justice Kennedy was careful to explicate its meaning.  Kennedy noted that “a central premise of [Casey’s] holding” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life”.  Kennedy noted that Casey had found that the Court’s decisions following the first abortion case, Roe v. Wade (1973), had “undervalued” the State’s interest in fetal life.  Thus, the Court in this case, Gonzales v. Carhart, “must determine whether the [Partial Birth Abortion Ban] Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”

This marks, I think, perhaps the most important aspect of Gonzales v. Carhart.  Once again the Supreme Court is insisting that the state has a legitimate interest in protecting fetal life.  This interest is real and substantive (so significant that it requires, in many circumstances, what Kennedy called a “balance” to be struck with the right to an abortion itself).  It cannot be disregarded by the courts.  As Kennedy noted, the “government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”  For the first time, there is a majority of the Court that recognizes that Casey requires the courts to recognize this.   Thus, to the extent that Stenberg suggested otherwise, it is overruled.

To be sure, Gonzales v. Carhart is in some respects very limited.  It surely did not, for instance, hold that there is no right to abortion.  It did affirm that the “trimester” approach of Roe has been replaced by a pre- and post-viability test.  However, significantly, it permitted governmental regulation (i.e., the PBA ban) during the pre-viability period.

The Court did not hold that the abortion right can, at any stage, be eliminated, but it did hold that the right was qualified.  This is a commonplace of the law usually.  But when the issue is abortion, a “distortion” is routinely introduced into the law by the Supreme Court, bending ordinary rules to give greater protection to the right to an abortion than is accorded to other constitutional rights.  Kennedy recognized one situation where the Court had done so – statutory construction.  Ordinarily courts will construe a statute so as to find it to be constitutional if possible, in recognition that it is the legislature’s job to make laws (which, in turn, recognizes the sovereignty of the people, through their elected representatives).  However, it “is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion…The Court at times employed an antagonistic ‘canon of construction…’”  However, “Casey put this novel statutory approach to rest.”  Kennedy, and the majority in Gonzales v. Carhart, refused to resurrect a special rule of statutory construction for abortion cases, privileging such cases about all others.  Hopefully, this presages a re-thinking of abortion jurisprudence by the Court to bring it in line with normal legal rules.