I'm not convinced that this week's Supreme Court decision on partial-birth abortion is as good as Justice Ruth Bader Ginsburg says it is, but I certainly hope she is right. She says it is alarming; it reflects manifest hostility to the unlimited abortion license imposed by Roe; it supports judicial deference to the legislative branch; it permits moral and ethical considerations to impinge upon law; it treats sympathetically such traditional notions as a mother's love for her child; and it is a first step toward reversing the abortion regime established by Roe. As I say, I hope she is right, but I expect she may be exaggerating somewhat.
Nonetheless, the Carhart decision is to be warmly welcomed. (It seems to be generally agreed that the decision will be referred to as Carhart rather than Gonzales.) Commentaries on the decision abound, and we will have a thorough analysis in a forthcoming issue of the magazine. Michael Uhlmann's posting here yesterday provided a valuable overview of abortion jurisprudence since Roe, and there is nothing in it with which I would disagree, although I do think more attention might be paid some of the more promising aspects in Justice Kennedy's majority opinion. And I am one with Joseph Bottum on the additional points he made yesterday, except it seems to me that the response to Carhart from the many institutions of the pro-life movement, including Justin Cardinal Rigali's official response on behalf of the bishops conference, is considerably more positive than he suggests. And rightly so.
Justice Kennedy's 5-4 majority opinion is notable for accenting the society's legitimate, indeed imperative, interest in protecting innocent human life. That interest had received lip service in Roe and its judicial offspring, but this time it is an operative, albeit not a controlling, concern. President Bush hailed Carhart as bringing us closer to the goal of "a society in which every child is welcomed in life and protected in law." A very little bit closer to a goal still painfully far away.
In its emphasis on the society's interest in protecting unborn life, this decision builds on the Born-Alive Infants Protection Act of 2002, which was the baby, so to speak, of our own Hadley Arkes. As Hadley has argued in First Things, that act was a crucial wedge in establishing in public law the obvious truth that the unborn child is a child. It is notable that Ginsburg and the other justices in dissent do not even attempt to challenge that truth, although the dissenters grumble about the opinion making so much of it. (A sizeable portion of the dissent is about the language employed by the majority: "child," "mother," and "abortion doctor," for instance, when "fetus," "woman," and "physician" would serve just as wellin fact, would serve much better if your purpose is to disguise the obvious.)
It seems to me that there is another question that should be pretty much settled now. Back in the 1990s, there was considerable argument among pro-life leaders about the wisdom of focusing on partial-birth abortion. It was a strategic decision. Pro-lifers opposed to it contended that partial-birth abortions accounted for only a few thousand abortions per year, and getting rid of that procedure would do nothing to protect the million and more other children killed by abortion each year. This was another instance of the familiar disagreement over the advocacy of incremental changes or frontal challenges to the abortion regime of Roe. Obviously, one would prefer a frontal challenge that would result in the overturning of that infamous 1973 decision. But it will not work, at least not now. Quite apart from specific decisions of the Court, the focus on partial-birth abortion has been a great success in educating the public to the reality of unborn life and the horror of abortion. In the dissent, Justice Ginsburg objects that the moral repugnance triggered by partial-birth abortion is true of all abortions. Precisely.
I expect it is in the minds of many, but so far there has been only marginal public comment on the fact that all five in the Carhart majority are Catholics. What can one say? Know-Nothings of the world unite? It is not a peculiarly Catholic perception, but it is an emphatically Catholic perception, that legitimate law cannot be divorced from morality. And in this constitutional order of representative democracy, the relationship between moral judgment and law is best expressed by the legislature. Almost a century ago, Oliver Wendell Holmes Jr. declared that the realm of law should be entirely purged of moral judgment or vocabulary.
That, of course, is itself a moral dictate. But over the past fifty years, the Court has followed that dictate on numerous issues, thus reinforcing what has been called the naked public square. The Ginsburg dissent is right: In previous decisions, especially those dealing with abortion, the Court said there was no place in law for the "imposing" of moral judgments. Carhart, by way of contrast, evidences a respect for moral discernment, especially as expressed by the legislature. Every law of consequence reflects a moral judgment. The abortion license imposed by Roe previously enjoyed a most particular exemption from moral inquiry. Carhart quite clearly says that that exemption is now expiring.
It is nonetheless the case that, as Mike Uhlmann points out, the ban on partial-birth abortion leaves the abortion license itself in place. The only question addressed is whether the ban is an "undue burden" on the exercise of the license. As Ginsburg delicately says of the ban, "The law saves not a single fetus from destruction." The Kennedy opinion is careful to point out that, even in cases when the child has reached full term, abortionists can avoid violating the ban by giving the baby an injection that kills it and then removing the corpse in pieces. So it is true that the unlimited abortion license, defined as the right to kill a baby at any point before live birth, remains unlimited.
It is also true, however, that the majority opinion is careful to say that the unlimited license rests on existing abortion precedents of the Court. Kennedy underscores that the present decision does not overturn those precedents. But Ginsburg is, from her perspective, rightly alarmed that the opinion is very careful not to affirm those precedents. If it had affirmed them, it would not have been a majority opinion, since Justices Thomas and Scalia once again make clear in their concurring opinion that they believe the abortion license is without foundation in the Constitution.
Which raises the question of why Justices Roberts and Alito did not join in the concurring opinion. The answer, it is reasonable to believe, is that the main purpose of the concurring opinion is to make clear that Thomas and Scalia are not withdrawing their objection to the use of the Commerce Clause to federalize abortion and other laws, and Roberts and Alito have no dog in that fight, as yet. Moreover, if Roberts and Alito do agree that Roe and its offspring were wrongly decided, this case did not require them to say so publicly. And, in fact, if they did say so now, critics would make hay of their not being impartial in considering a future case in which Roe and its judicial offspring are overturned. So I see nothing ominous in the fact that Roberts and Alito did not join the concurring opinion in Carhart. To which it must be added, of course, that we do not know for sure whether theypossibly along with Kennedy and the next justice to be appointedwill support the reversal of Roe when an appropriate case is accepted by the Court, although we may reasonably hope so.
In reporting Carhart, the New York Times lede declared that the Court "reverses course" on abortion. That is true in a limited sense. Justice Ginsburg is correct about the differences between this decision and prior decisions in which the Court upheld pitifully minor regulations in the exercise of the abortion license. To be sure, there are no guarantees, but Carhart gives reason to think that Ginsburg's fears may be vindicated and the abortion regime may be on its way, a painfully slow way, toward extinction.
While the carnage continues, there is no place for false hopes or counsels of despair. It is not, I believe, a false hope to think that this week's decision has brought us a little closer to the goalnever to be realized fully within the limits of historyof a society in which every child is welcomed in life and protected in law. There will always be some abortions, as there will always be other forms of homicide, along with rapes, child abuse, and similarly grievous crimes. But the lawin its pedagogical, protective, and punitive functionscan discourage and prevent such great evils. Carhart has made that prospect a little more visible on the still distant horizon.