Only a day after the election, the Supreme Court heard oral argument on Gonzales v. Carhart, the case testing the federal ban on partial-birth abortion. On this argument—and this case—much will hinge. If the Supreme Court sustains the federal bill, the decision would mark, in effect, the end of the regime of Roe v. Wade, even if the Court does not explicitly overrule that earlier decision.
As everyone has long known, the outcome will hinge on Justice Anthony Kennedy. He dissented in a precise, impassioned opinion six years ago when the Court, by the narrowest of votes, struck down a comparable bill on partial-birth abortion in Nebraska in Stenberg v. Carhart. Justice O’Connor had been the swing vote then, providing the fifth vote for overturning the law on partial-birth abortion in Nebraska and, by inference, in thirty other states. But now O’Connor is gone, replaced by Samuel Alito. (John Roberts has replaced Chief Justice Rehnquist, but Rehnquist had also been in dissent in the earlier case.) And so there is a good chance that the Court may now flip the decision in Stenberg v. Carhart and come out with a strikingly different decision in Gonzales v. Carhart.
Dr. Carhart, in other words, has remained the same. And in league with the federal district court, Richard Kopf managed to restrain the federal bill on partial-birth abortion, as he had managed to resist the same bill in Nebraska. The question, though, is whether Justice Kennedy has remained the same. With O’Connor gone, Kennedy has the chance to ascend to that critical position as the swing judge. In his dissent in Stenberg, he wrote with anger and precision as he opposed this gruesome procedure of partial-birth abortion. But there are the lures of that special leverage that come with the position of the swing judge, the judge who can determine the outcome and dictate the terms on which the case is settled—or unsettled.
And so attention was fixed on Justice Kennedy during the oral argument on Gonzales v. Carhart. From a close reading of the transcript, it appears that Kennedy has positioned himself to come down on either side. Congress had appended to its bill a finding that a partial-birth abortion is never necessary for the health of the mother—and so there was no need to append to the bill a health exception. But during the oral argument, Kennedy affected to take seriously the concern that, under certain conditions, a partial-birth abortion might be safer for a woman because there would be no dismembering of a child in the womb, consequently there would be no instruments introduced into the body threatening to perforate the uterus, and there would be no fetal parts left behind where they could cause infections. Kennedy seemed to be straining earnestly to gauge just how serious was the danger posed to the pregnant woman.
All this looks like an elaborate prelude to his coming down against the ban. But then, through the haze of the oral argument, Kennedy managed to ask the most decisive question—the question that put everything in order. And it also may have disclosed the path he will finally take. Chief Justice Roberts set things up with a question that has been posed in the past by other commentators: If the partial-birth abortion is safer because the child is not dismembered in the womb, why “stop it halfway”? Why not deliver the child intact and then put it aside to die?
That is precisely the procedure that has been practiced now in several hospitals as “live-birth abortion.” Priscilla Smith, the lawyer for Carhart, was caught a bit off guard and sought to sidestep the question: She could offer only that there were circumstances in which a fetus could not be delivered—perhaps because of an obstruction coming from a distension of the pregnant woman’s abdomen. Kennedy intervened then: “It seems to me that your argument is that there is always a constitutional right to use what the physician thinks is the safest procedure.” But that is a claim, of course, that trumps any law restricting any method of abortion. Smith sought quickly to deny the account of her position: A doctor would be obliged, she said, to consult “a substantial body of medical opinion,” and that sense of things “balances concern against protecting a woman’s health with a concern of unfettered discretion.”
With that, Kennedy sprung the trap: “So then, you think there are instances in which the state can require that a procedure be used, even if it’s not the safest procedure?” As Smith, a bit staggered, tried to take hold of what he was doing, Kennedy explained the ground they had traversed: This being, he said, merely “the obverse of the proposition I put at first, it must be true that there are some instances in which the state can prohibit a procedure even if it is the safest procedure.” With that move, he undid in a stroke the central case for opponents of the law. Congress might have grounds for banning a procedure it regards as offensive or repellent even if that procedure happens to be safer—as indeed it would be even safer to do the “live-birth abortion” and put the child aside to die.
In the second hour of oral argument, in the companion case of Gonzales v. Planned Parenthood, Kennedy sought to round out his questioning—or think through the matter a bit further—by gauging just how serious the risk was to the pregnant woman. If there was a chance of one out of a hundred that a partial-birth abortion might be safer, would that be small enough to allow banning the procedure? Kennedy mulled aloud the question of whether if the uterine wall is “compromised by cancer or by some forms of preeclampsia and it’s very thin, there’s a risk of being punctured.” That is, were there rare cases in which the risk of the invasive surgery made it less dangerous to the pregnant woman to have most of the body of the child removed before the head was collapsed and the child could be removed, so to speak, intact?
Kennedy was evidently on the edge, trying out a certain willingness to strike down the law. Chief Justice Roberts, sensing him on the edge, sought to offer assurance from another angle: There is actually no evidence in the record as to how much safer the partial-birth procedure is. (As Judge Casey had noted in New York, the opponents of the bill had not been able to cite even a single case in which a woman had been endangered by the absence of this procedure.) If the procedure were only marginally safer, asked Roberts, would that be enough to override the judgment of Congress in banning the surgery? From the lawyer for Planned Parenthood, Eve Gartner, Roberts elicited the concession that, indeed, “marginal safety would not be enough” to override the judgment of Congress. But, even at the margins, she wished to contend, the danger was significant, and the interests of the pregnant woman had to trump the law.
But that refinement of the question gave Justice Kennedy another opening. Perhaps there was no need or justification to strike down the law on its face. The Court could simply wait for a case to arise in which those grave dangers were in fact posed. The law could be challenged then “as applied”—as it bore on the circumstances of a real case. As the solicitor general, Paul Clement, pointed out, there could be a “preenforcement challenge.” A pregnant woman with cancer, say, could then challenge the law, and the issue could be delivered then from the haze of guessing and conjecture. The condition of the woman could be described, in exacting terms, and the judges could gauge then, in a concrete case, whether it would be justified to withhold the partial-birth abortion.
To what, then, was Kennedy pointing? To divine the outcome and the trajectory of Justice Kennedy may require a Ouija board. Nevertheless I would venture this speculation: The chief justice may give over the writing of the opinion to the swing judge, and Kennedy will write an opinion upholding the law on partial-birth abortion only provisionally, on the narrowest ground, as the Court simply rejects a facial challenge to the bill.
Here the chief justice may replicate one of his early, deft moves, where he invited Sandra Day O’Connor, of all people, to write for the Court in overturning a facial challenge to a law on abortion in New Hampshire. That the decision came in the voice of O’Connor had to make a telling impression on the partisans of abortion. The chief might produce a comparable effect here by having Kennedy write, as he has standing as one of the judges who has preserved Roe v. Wade. The bill would then be sustained, though not in a ringing or confirming way and not in a way to suggest the Court is now inviting a flow of measures from the states to restrict abortion. The matter would be left to another day; meanwhile, the partisans of abortion would be flexing their wit, trying to find just the right case to test again the disposition of the Court. That may take quite a long while. In the meantime, the federal law on partial-birth abortion will have been sustained. It will be part of the law of the land, and on that basis it may have its effect. Doctors now doing the procedure—and there are many—would be cautioned to back away.
Make no mistake: A means to test the ban will be found. The opponents of the law have been rather casual in the past in bringing forth women who have claimed to have had partial-birth abortions, only to have their accounts challenged by doctors who perform abortions. The people testing the law are not likely to try their luck again in the courtroom of Judge Casey in New York, for he has shown himself to be quite rigorous in testing severely the claims of evidence brought before him. Other federal judges have been notably looser in their testing of the evidence or altogether credulous in their willingness to accept any account offered them by Planned Parenthood and the defenders of abortion.
One way or another, a test case will be sent up to the Supreme Court, and matters will hinge then on the willingness of Kennedy and his colleagues to be as tough-minded as Judge Casey in testing the evidence. Will Kennedy be willing to bounce the case back to the courts to get a record more scrupulous with the facts? Or will he find in the case simply an occasion to take the second, delayed step and finally strike down the law with a clearer record? With that stroke, of course, he would make himself the premier jurist in the land in the estimate of the New York Times and the professoriat who fill the law schools. He will be the new, preeminent hero of liberal America, the fitting successor to Harry Blackmun and Sandra Day O’Connor. Or he could take up again the argument he made so movingly in the Stenberg case and vote again to affirm the banning of this ghastly procedure. As we await the outcome, we track again the soul of Justice Kennedy in its winding course, as it reveals itself more fully with every turn.
That is a sober reckoning but hardly the most sober. The class that now forms the federal judiciary has come to see itself as forming the regime. The judges will get their way. There is no need to wait to find a woman with a demonstrable need for a partial-birth abortion. If the argument over the health exception did not work, Judge Kopf in Nebraska would suffer no hesitation in returning to the argument that these bills on partial-birth abortion are just fatally vague—that doctors may find themselves backing into this procedure without quite intending it and without being quite aware that they are crossing a line. If the argument over vagueness does not work, the judges will try something else. The important point is to keep the bill tied up, to make it clear to those pro-lifers animated by religious zeal that the federal courts will simply not brook any of this.
That seems a bleak prospect, but it is precisely what the Court will invite if it takes the most cautious approach, striking down a facial challenge to the bill and bopping the whole business back to the lower courts. Under the cover of a meticulous, conservative jurisprudence, the bill on partial-birth abortion will be ground down, and so too will be the pro-life cause. What I would wish to see, of course, is an opinion written by Chief Justice Roberts or Justice Scalia that sets forth, in resounding terms, the deep justification for the law on partial-birth abortion. An opinion of that kind could convey to the judges in the lower courts that their superiors, on the highest court, want this case, on this law, to be resolved and settled.
But to mark in this way the strains of the conservative judges is to come to the edge of a melancholy truth that may finally speak its name: By their temperament and style, by the doctrines that have shaped their character—in short, by the way they are constituted—the conservative judges are incapable of dealing with the political crisis shaped by Roe v. Wade. The persistent failures and frustrations have been virtually foretold by the decision, confirmed many times by the directors of the Republican party, to leave entirely with the judges the burden of undoing that political crisis.
The closest parallel to Roe v. Wade is the decision in the Dred Scott case, and it seems curiously to have slipped from memory that President Lincoln did not seek to cope with that crisis in the regime by waiting for retirements from the Court. He forced the argument in public; he led a national movement to counter and overturn that decision; and he moved with Congress to roll back that decision in an act of ordinary legislation.
In striking contrast, Karl Rove spoke to a gathering of Republican-party activists in Florida in January 2006, on the anniversary of George W. Bush’s inauguration. He moved in a masterful way across the full range of issues, but, when it came to those vexing moral questions of abortion and same-sex marriage, he thought it sufficient to note that the administration was seeking to appoint the right judges. At every turn, the administration has confirmed what President Bush intimated a long while ago: that he would not lead on these questions. The president would speak on the life issues mainly in pro-life enclaves of Catholics and evangelicals. And the media have treated his speeches there as talk not meant for anyone else to hear, certainly not worth reporting to a broader public.
By this stage of our experience, it is time to speak a plain and painful truth: The unending disappointments in the courts cannot be laid entirely on the conservative judges, for they do what conservative judges ever do. They try to work under a stern discipline, with decisions precisely and narrowly framed, without deciding more than they need to decide, without grasping more power than they need, and leaving power in hands other than their own. The heartbreak of the courts is a reflection, rather, of a political class that has backed away from the work distinctly its own. It has left that work to be done by someone else, in decisions strung out, in painful increments, never reaching a resolution.
Hadley Arkes is Ney Professor of American Institutions at Amherst College.