Both sides in the culture war over abortion have been readying themselves for the decision of the Supreme Court this fall on partial-birth abortion. Both sides expect a decision portentous and astounding—for people on both sides seriously expect the Court will use its decision to overturn Roe v. Wade.
That is not likely to be the case. An outcome so dramatic is not strictly necessary, and it may not even be prudent. In any event, it seems quite improbable from a Court containing judges as cautious and circumspect as John Roberts and Samuel Alito. The question on which everything else hangs is whether the Court will manage to flip the decision it handed down six years ago in Stenberg v. Carhart, in which, with Sandra Day O'Connor providing the deciding vote, the Court overturned the law on partial-birth abortion in Nebraska (and, by inference, in thirty other states).
With O'Connor now replaced, it seems a good bet the Court would overturn that judgment. Whether it will reach the same result with a ban on partial-birth abortion emanating from the federal government is a notably different question. Still, if Roberts and Alito help simply to overturn that prior decision on partial-birth abortion, my own judgment is that the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, “We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion.”
That would invite a flood of measures enacted by the states. They might be restrictions on abortion after the point of viability, for instance, or even earlier, with the first evidence of a beating heart. Or requirements that abortionists use a method more likely to yield the child alive. Or provisions that ban abortions on a child likely to be afflicted with disabilities, such as Down syndrome.
Each restriction would command the support of about 70 or 80 percent of the country, including many people who describe themselves as pro-choice. And step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified. This seems to me the path far more likely to be taken by justices with the judicial temperament of John Roberts and Samuel Alito.
It may also be the better and more prudent path to take. To overturn Roe in one decisive stroke risks setting off a panic among people who have been led to believe that they would be dispossessed, at once, of rights they have come to regard as fundamental. We've lately had the spectacle of people even with college degrees apparently seized with the notion that the overruling of Roe would make abortion illegal, overnight, throughout the land. Simply overturning Stenberg v. Carhart this fall would avoid that panic and nonetheless mark the beginning of the end of Roe.
Even that will not be easy, despite the presence of John Roberts and Samuel Alito. As the drafters of the federal bill sought to get around the objections of the Court, they tried to address two lines of argument in the Stenberg case.
First was the charge of vagueness in what they were proscribing. There was nothing, of course, vague about partial-birth abortions, and surgeons did not suffer the least doubt as to when they were doing them. But, as Dr. Carhart earnestly pleaded, his daily work—his ordinary, everyday abortions—involved the dismemberment of a child in the womb and the drawing of severed parts through the birth canal. Every abortion he performed could be called, then, the destruction of a “living fetus” emerging from the womb: Killing live fetuses is exactly what he did for a living with every abortion. There was one of the truths that dare not speak its name: Most of the country recoiled from the horrendous procedure of partial-birth abortion when it was described, but in point of fact it was not more horrendous than the butchering that was commonly taking place with the dismembering of live babies, without anesthetic, in the daily run-of-the-mill practice of abortion.
The second line of argument dealt with the “health exception.” The Court, and especially Justice O'Connor, insisted there cannot be a restriction of abortion without such an exception for the pregnant woman. Ample testimony in the hearings demonstrated that the procedure of partial-birth abortion is never indicated for the purpose of guarding the physical health of the pregnant woman. But, of course, in the way that the Court defined health, it typically encompassed mental health—which is to say, an abortion could be ordered up if a doctor certified that his patient would suffer distress in not having one.
No evidence had been presented to Congress or a court showing any case in which a partial-birth abortion had been necessary or even safer as a procedure. Nevertheless, Justice Breyer was willing to strike down the bill simply because it was conceivable that this procedure, in certain instances, might be safer: No parts of the fetus would be left behind in the body, where they could cause infections. But by this reckoning, the safer procedure by far would be the “live-birth abortion,” as practiced in Christ Hospital, in Oak Lawn, Illinois, and other hospitals: A child is simply delivered whole and put aside, in another room, to die.
Justice Scalia aptly rejoined, in the Stenberg case, that grafting a health exception on to this kind of bill was a requirement that extinguished the bill itself: “The Court must know (as most state legislatures banning this procedure have concluded) that demanding a ?health exception'-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)—is to give live-birth abortion free rein.”
There had been ample testimony in the congressional hearings, from fetologists and doctors who performed abortions, that no affliction faced by a pregnant woman would be remedied by a partial-birth abortion. Congress revisited those hearings in order to meet the concerns of the Court. With its own reading of the record and its own assessment of the evidence, the Congress then declared, “There exists substantial record evidence upon which Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ?health' exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care.”
But by the time the bill on partial-birth abortion was presented for the third time, the opposition had lined up its own array of professionals, ready to affirm the safety, value, and redeeming goodness of partial-birth abortions. And so, there were statements duly offered in opposition to the act from the American College of Obstetricians and Gynecologists and a cluster of groups with an evident political coloration, allied to governments or to advocacy groups: the American Public Health Association, the California Medical Association, the Association of Reproductive Health Professionals.
Judge Richard Conway Casey, considering the constitutionality of the bill in the district court in New York, offered a scrupulous review of the testimony, and he acknowledged that the defenders of partial-birth abortion were never actually able to bring forth evidence to show that the procedure was necessary because it was demonstrably safer than any alternative form of abortion.
As Casey summed up his judgment, in language not at all shaded, many of the “purported reasons” offered in support of the medical necessity of the procedure were simply not credible; “rather they [were] theoretical or false.” In no case, he said, involving “maternal health conditions” could the professionals opposing the bill “point to a specific patient or actual circumstances in which D&X [dilation and extraction, or partial-birth abortion] was necessary to protect a woman's health.”
And yet the problem, as Judge Casey understood, was that the Supreme Court had altered the frame of the question: What was involved now was something regarded as the “fundamental right” of a woman to choose abortion. And against that right, a legislature had to bear a heavy burden of proof. He was constrained by the guidelines of the Supreme Court, but he made use of his powers of trial to put on the public record one of the most detailed accounts of the facts that describe the procedure of partial-birth abortion and revealed the character of the people who would make this kind of killing their office work. While Casey was prepared to do his judicial duty and overturn the ban, he allowed himself the observation that “medical science and ideology are no more happy companions than Roe and its progeny have shown law and ideology to be.”
In the first footnote of his fastidious opinion, Casey pointed out the dog that was not barking. The opponents of the bill, he noted, “do not allege that Congress exceeded its authority under the Commerce Clause” of the Constitution. There is the ingredient that complicates this case for conservative judges. That a state may bar private clinics and doctors from performing surgeries it regards as wrongful is a matter that comes presumptively within the traditional reach of police powers: the traditional authority of state and local governments to act for the “health, welfare, and morals” of the people within their reach. But for the federal government, a government supposedly of enumerated powers, it has not been so clear as to how that government can reach directly to private clinics, private clubs, private businesses. Since the New Deal, that matter has been finessed, though never satisfactorily explained or justified, by using the Commerce Clause of the Constitution. Conservatives bite their lips when they invoke the Commerce Clause, but for the most part they too have had to absorb the precedents set in place since the New Deal. And so, when the bill on partial-birth abortion was introduced in 1995, the drafters directed the bill to “any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus.”
But what seemed to go unnoticed for a long while was that, in the same year, the conservatives on the Supreme Court started taking some modest steps in placing limits on the Commerce Clause. In U.S. v. Lopez, the Court overturned the federal bill that barred the use of guns near schools. The liberals on the Court were willing to reason along with the reigning fictions: In this case, that violence near the schools could impair the performance of students and render them less able to take their part in a national and global economy.
But as Chief Justice Rehnquist observed, the performance of children in the schools was demonstrably likely to be affected by the breakup of their families. Did that mean that the federal government could take over the laws on marriage and the family in the states, or perhaps even take over the local schools altogether? As pro-lifers concentrated on the bill on partial-birth abortion, they seemed to forget that it was still cast in terms of the Commerce Clause. The bill, in that form, could have trouble in commanding uniform support from the conservative justices. With O'Connor replaced by Samuel Alito, there is now a potential majority in support of the bill on partial-birth abortion—if the question of the Commerce Clause does not prove unsettling. And the loss of one vote would be the loss of the case.
I had raised this issue in a meeting of lawyers, and a friend who had clerked for Justice Scalia reminded us of how limited the holding in the Lopez case had been. The reach of the federal government under the Commerce Clause would be vast, but it has to be confined to “commerce” or to activities that were “economic” in character. In other words, for Scalia and Rehnquist, it would have been an entirely different matter if the federal government had sought to bar the sale of guns near schools. That, apparently, they would have felt obliged to sustain. Scalia's former clerk pointed out that the bill on partial-birth abortion would pose no problem as long as there was a transaction—as long as someone paid for the service of performing the abortion. For most of the judges, that may be true. But not for all. Most notably, not for Clarence Thomas. When his colleagues started their cautious scaling down of the Commerce Clause in Lopez, Thomas thought the change so modest, so pusillanimous, as to be unserious. He wrote a separate, concurring opinion, arguing for a return to the wholesome discipline and constraints that came with the Commerce Clause as traditionally understood, before the New Deal dissolved any plausible sense of boundaries.
Thomas was alone, even among the conservative jurists. But he had articulated his position in one of the most notable essays in his years on the Court, and that argument, put forth so earnestly, had to come into play if the bill on partial-birth abortion were litigated under the Commerce Clause. For Thomas would be under immense personal pressure to show that he did indeed respect the doctrine of jurisprudence he had put forth. And in the style of conservative jurisprudence, the demonstration would be all the more exquisite when he shows people that he would honor his doctrine even when it prevented him from reaching a decision in the case at hand that he devoutly wished to reach. For the pro-life cause, the loss of this vote would be momentous: If the federal bill on partial-birth abortion were struck down, no one would expend the political capital to try, for a fourth time, to revise that bill and present it for hearings yet again. That particular measure by itself may not be overly important, but the dramatic loss in the Court could be widely demoralizing.
There the matter sits, with a question mark for Clarence Thomas. Some of us in the pro-life ranks have sought to make an argument that runs back to the axioms of the Constitution and the separation of powers. It involves a slight reworking of an argument offered by Chief Justice Marshall in Cohens v. Virginia (1821), and it may be condensed in this way: If the Supreme Court can articulate new rights under the Constitution—if it can find, in the Fourteenth Amendment, the right to an abortion—then the legislative branch must be able to act on the same clause in the Constitution in vindicating those same rights. And in filling them out, it may also mark their limits. Congress could plausibly say, for example, that whatever was established in Roe v. Wade, a right to abortion could never be taken to mean a freedom to kill a child at the very point of birth. What cannot be tenable, under the logic of this Constitution, is that the Court can articulate new rights—and then assign to itself a monopoly of the legislative power in shaping those rights.
If Justice Thomas were willing to join a majority containing Scalia, Kennedy, Roberts, and Alito, the federal bill could be sustained, and the decision in Stenberg flipped. That, I think, would signal the end of the regime of Roe v. Wade even if the Court does not pronounce that “super-duper precedent” overruled. And yet, a Court containing jurists of the temperament of Roberts and Alito may choose to decide in this case in a manner even more delicate and restrained, even more in keeping with the discipline of judging that conservatives keep touting.
The key is the other dog that didn't bark, the dog that remained silent during the oral argument six years ago in the Stenberg case. The case offered Justice O'Connor a chance to strike a conservative posture because the case had arisen as a “facial challenge.” The aim of the law was to protect children from a hideous procedure, puncturing their skulls at the point of birth. Dr. Carhart professed to fear that the law could be used against him for abortions performed much earlier. But it made no sense to presume that the people who framed the law, or those who enforced it, would act in such an incontinent way, paying no heed to the purpose and guidelines of the law. The truly conservative reflex would have been to withhold judgment and wait for a real case: Let us gauge the intentions and understanding of the authorities by waiting to see just how, in fact, they choose to enforce the law. O'Connor could have written for a conservative majority in declining to decide the case.
But in the course of the oral argument, that concern was never sounded by Justice O'Connor, and I took it as a telling sign of how the case would come out. In declining to take that conservative path, O'Connor and her colleagues were, in effect, rendering an advisory opinion, and they were abandoning the rule contained in their own 1987 precedent in U.S. v. Salerno, where the Court had acknowledged that “facial challenges” must be accepted only rarely, because they involve the risk of exceeding those boundaries that confine the power of the judges.
The understanding was that a law may be struck down on its face only when there was no conceivable or imaginable set of circumstances in which the law could be constitutional. But with cases on abortion, the situation has now been inverted: The Court seems to begin with the premise that any law restricting abortion is presumptively invalid, and the legislation could be declared unconstitutional on its face if there were any conceivable circumstances in which it might be unconstitutional. Judge Frank Easterbrook in the Seventh Circuit expressed the perplexity of judges trying to discern the law they are expected to follow: “When the Justices themselves disregard rather than overrule a decision—as the majority did in Stenberg, and the plurality did in Casey—they put courts of appeals in a pickle. We cannot follow Salerno without departing from the approach taken in both Stenberg and Casey; yet we cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books.”
What has happened to that vaunted “respect for precedent,” of which we heard so much in the hearings on Roberts and Alito? Chief Judge Walker observed in the appellate court in New York that even if Congress barred that grisly procedure known as partial-birth abortion, there would be a safe, alternative procedure available for any woman who wanted an abortion. And yet, under the Stenberg case, the lower courts were obliged to strike down any bill on partial-birth abortion out of a speculation that the procedure might, just might, be useful to someone. Judge Walker took the shift here as profoundly serious: In the understanding long settled, the courts need to wait for a real case in controversy, and while the judges hold back their hands, power is left in hands other than their own. In Walker's reckoning, the performance of the Court here was tantamount to the Court itself evading the boundaries to its own power and the restraints of the Constitution.
A Court headed by John Roberts may simply install the rule from the Salerno case and send all of the pending cases back to be tried again. Under that rule, the law on partial-birth abortion may be harder to strike down. But the judges in the lower courts, ever resourceful, ever willing to contrive new arguments, will find other reasons for striking it down. The matter will come back again, and again.
All of that quite suits the temper of conservative judges, who may be disinclined to take any step that is not strictly necessary. But in this path now lies evasion and debility. My hope is that the Court, with Roberts and Alito, will do more—that it will move decisively to sustain the bill on partial-birth abortion. But it has been confirmed now, in the circles of conservatives, that judges will show their fitness as judges by honoring a notion of law utterly detached from substantive judgments of right and wrong. The voters who have backed two Bushes and Reagan, expecting something dramatically different, may discover once again that the judicial world is fixed in a mold that will persistently break their hearts.
Hadley Arkes is Ney Professor of American Institutions at Amherst College.