In April the five Catholic Justices on the United States Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003 in Gonzales v. Carhart. Leroy Carhart, one of the doctors who unsuccessfully challenged that federal ban on partial-birth abortion [PBA], was on the winning side in 2000, when the Court issued a 5-4 ruling in Stenberg v. Carhart that a statute banning partial-birth abortion was unconstitutional. In Stenberg, the three Catholics then on the Court—Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas (along with Chief Justice William Rehnquist)—dissented from the Court’s ruling. In the recent decision, new Chief Justice John Roberts voted with those three dissenters, while Sandra Day O’Connor’s replacement on the Court, Justice Samuel Alito, provided a fifth vote to uphold the congressional ban on PBA.

     During their confirmation hearings, the two new justices had firmly pledged to follow the law, not their religious or personal beliefs; Justice Kennedy, the author of Gonzales, made the same promise to the Senate in 1988. Nonetheless, the Gonzales opinion is noteworthy because its reasoning is closer in style and substance to Roman Catholic moral theology than to constitutional precedent, including Stenberg and the Court’s leading abortion case, Planned Parenthood v. Casey. 

     Roman Catholic teaching about abortion is straightforward and absolute:  all direct abortion is prohibited as murder. The fetus, who is a person from the moment of conception, has an “inviolable” right to life. Dangers to the health and life of the mother, “however serious and tragic, can never justify the deliberate killing of an innocent human being.” Roman Catholic theologians have identified two narrow circumstances in which “indirect” abortion is permitted to save the woman’s life: a doctor may remove the uterus of a pregnant woman who has uterine cancer, or the fallopian tube of a woman who has an ectopic pregnancy. Under this reasoning, however, a doctor who preserves the mother’s fertility by performing an abortion while leaving the uterus intact may act immorally. The health of the mother, moreover, can never outweigh the life of the fetus.

     In stark contrast is the “essential holding” of Roe v. Wade, as interpreted by the Court in Casey (in an opinion joined by Justice Kennedy) and reiterated by Kennedy in Gonzales:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. (emphasis added)

      Justices Scalia and Thomas have been vociferous critics of Casey; they deny that the Constitution protects any right to abortion.

      The Nebraska PBA law was unconstitutional both because it was vague and because it contained no health exception for the mother. The vagueness comes from the difficulty of distinguishing the legal abortion procedure known as dilation and evacuation (D&E), in which the fetus is removed in parts, from dilation and extraction (D&X, also known as intact D&E or PBA), where the fetus is removed in intact form, without dismemberment.

      Congress’s PBA legislation both defined PBA more precisely and included findings that PBA is never necessary to save the mother’s health. Relying on Casey and Stenberg, and questioning Congress’s findings, six federal courts invalidated the act, reasonably concluding under those precedents that an abortion statute must contain an exception for pregnancies that endanger the woman’s health.

      The new Supreme Court upheld the legislation despite medical evidence that women’s health may be affected by the ban. In a surprising new argument for the Court, Justice Kennedy explained that Congress has the power to ban PBA in order to spare women the regret they may experience post-abortion (even though there are “no reliable data to measure the phenomenon” of post-abortion regret). His opinion thus weakened the existing protection for a woman’s health exception as well as added a new rationale for the state to restrict abortion, namely its desire to protect women from sorrow over their choice to abort.

      Consider the similarities between Church and Court. Both support an absolute rule (no direct abortion, no PBA) that always favors fetal life over maternal health. Both substitute a banned procedure for the judgment of the woman and her doctor. Their proposed standard, whether direct or indirect, D&E or D&X, is difficult to apply in practice; even Justice Kennedy acknowledges that some applications of the statute may remain unconstitutional. Finally, both positions are deduced from a hierarchy of moral principles that values fetal life over women’s health and women’s choice.

      Those principles are compelling and possibly correct as a matter of morality. What the Court’s moral analysis lacks, however, is sufficient attention to the constitutional and legal value emphasized by Justice Ruth Bader Ginsburg, now the only woman on the Court, namely “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Although the Church is free to reject that principle, the Catholic members of the Court should uphold it.