Is Carhart, or is it not, a departure from the Court’s prior abortion precedents?  The problem in answering this definitively is that the abortion precedents were themselves so unclear and malleable from the start – in short, the antithesis of what a good judicial opinion should be.  Moreover, the Court’s entire abortion jurisprudence has, from its conception and infancy in 1973, been a sort of ultra vires exercise.  When a line of cases is fundamentally flawed and inconsistent with the text, history, and principles of the Constitution to begin with, the stare decisis analysis arises in an entirely different light.

            Carhart is consistent with the Court’s precedents, flawed though they are.  The one respect in which it departs from more recent abortion precedents – and thus arguably technically does not comport with stare decisis – is that Carhart appears to have ended the super-duper-privileged status of plaintiffs challenging abortion regulations, who recently have been successful with facial challenges to those laws without proving, as ordinary litigants must, that “no set of circumstances exists” under which the law could be valid.  In a narrow and technical sense, then, Carhart arguably departs from stare decisis because abortion plaintiffs were not held to this standard in Casey or Stenberg.  But I think it is more correct, and a better perspective, to say that Carhart comports with stare decisis in that it is consistent with the most important of the Court’s precedents on the requirements for a facial challenge, United States v. Salerno.  Earlier abortion cases had used the Salerno standard until, inexplicably, a majority went off the rails on the standard for facial challenges.  

            With respect to the bigger picture of stare decisis and abortion precedents, the situation is analogous.  “Disrespect for stare decisis” is an odd objection to a court decision that corrects previous errors and returns a line of jurisprudence to its correct constitutional moorings.  If a decision is wrong, then stare decisis is not a compelling reason to pile up more wrong precedents.  In addition, the amount of weight to place on stare decisis varies with the effect that the past precedents have had, and how well settled the law and society are as a result of them.  It goes without saying that abortion law has been in complete turmoil, and our society is possibly even more divided and unsettled over the issue, than before Roe.  Accordingly, Roe and Casey are not candidates for the stare decisis Hall of Fame.  So even if Carhart somehow, when the dust settles, appears to have shaved a sliver off of Roe and Casey and Stenberg, it is not the end of the world.  Rather, one almost dares to hope it is the beginning of a new era of judicial restraint, returning in some small way the right to choose abortion policy to the people through the process of representative democracy.

            One has a sense, therefore, that Carhart emerges slightly from the muck and mire that has been the Court’s abortion jurisprudence.  Over time, a slight change like this can set us on a course to ultimately get things cleaned up and corrected.  This is not a foregone conclusion, but a distinct possibility.  The door is now open, for example, for states to go back and introduce new state prohibitions on partial birth abortion.  The federal law was drafted so narrowly – necessarily so by Stenberg – that the practical effect of this decision is likely to be negligible on actual abortion practice.  And, even if this law is effectively enforceable, as Justice Ginsburg noted in dissent, the Federal Partial Birth Abortion Act is not going to save the life of one unborn child.  There are other ways to chop up a baby.  So it’s a very modest and technical legal step in correcting the extreme and incorrect state of abortion jurisprudence. 

            The thing that was a bit startling about the opinions was the attempted re-tooling of the general pro-abortion rationale in Justice Ginsburg’s dissent.  Roe v. Wade and its progeny have long stood as judicial fiat in search of a justification.  Prior attempts to posit an abortion right in the fields of privacy and liberty, as the very bright Justice Ginsburg knows, lack intellectual rigor and judicial integrity, as many pro-choice legal scholars have themselves acknowledged.  But the Ginsburg dissent, trying to reground the right to abortion around women’s “equality” and “autonomy,” is equally deficient as a rationale.  It might have been an amusing law review article 30 or 40 years ago, but it sounds strangely anachronistic to this female ear in 2007.

            Liberty and equality are in a sense two sides of the same coin, constitutionally speaking:  we are free men (I use the term “men” to mean humans;  I count myself among such “men”) because we are equal under the Constitution, and we are equal because we are all free, in the important respects that our Constitution is able to vindicate those natural human freedoms. 

            But nothing in the Constitution itself, or any statute or judicial decision, can change the fact that women have babies.  Men do not.  It does not detract from female liberty or equality under the Constitution that only women can have babies.  The Constitution cannot do anything about it.  The hard-core feminist rhetoric that the “right” to have the brains vacuumed out of the skull of one’s own baby is the cornerstone of “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship” is gravely misguided as a matter of law and as a matter of ethics.