We will, I imagine, be talking about the Supreme Court’s decision in Gonzales v. Carhart for a long time: sorting out the implications, reading the tea leaves, following the press coverage. Earlier today Michael Uhlmann did a nice job , here on the First Things website, of placing the partial-birth-abortion case in the history of abortion jurisprudence. Tomorrow Richard John Neuhaus will add his deep reading of Justice Kennedy’s decision and Justice Ginsburg’s dissent.
In the meantime, however, here are a few additional points that we might set down while thinking about Carhart :
1. The commentator Hadley Arkes proves to have been prescient about several of the features of this case. In a pair of articles for First Things ¯" This Heartbreaking Court " in the October 2006 issue and " The Kennedy Court " in the January 2007 issue¯he accurately predicted:
the federal ban on partial-birth abortion would be upheld, without any explicit repudiation of Roe or Casey
Justice Kennedy would not merely form the swing vote but would self-consciously and deliberately position himself as the swing vote: the great agonizer in whose hands rests the final judgment on all the nation’s abortion laws
Justice Thomas would reiterate his dislike for the federal power expanded through what he believes is misuse of the Commerce Clause, but in the end it wouldn’t stop Thomas from joining any majority that turned back the Court’s abortion precedents
The decision upholding the federal ban on the gruesome procedure would be the device by which subsequent lawsuits would chip away at Roe and Casey
2. Actually, that last point of Hadley’s is far from certain, and the pro-life world has not greeted the decision in Carhart with perfect joy¯a sigh of relief, of course, but not the great shout of victory. It is, rather, the pro-abortion crowd that seems, in these first days, to believe that Carhart has made a chisel for reducing Roe to rubble. "Chip, chip, chipping away at Carhart ‘s ‘undue burden’ test until a woman’s right to control her reproductive decisions fundamentally disappears," announced the popular leftist site, the Daily Kos . In this, the pro-abortion activists are following the lead of Justice Ginsburg, whose very angry dissent announces that this decision must not have "staying power," or the right to abortion is undone. The pro-life analysts certainly hope this is true, but they’ve been much slower to announce it.
3. One welcome feature of this decision is the apparent implication that abortion jurisprudence will no longer be a realm apart in constitutional law. The deformities Roe introduced into legal analysis have grown and grown over the years. Think of the FACE act, with its violation of well-settled free-speech decisions, upheld against protestors simply because it was abortion they were protesting. Much of Kennedy’s work in Carhart yesterday deals with the technical legal issue of facial as opposed to as-applied challenges to the constitutionality of a law. And the reason is simply that, for many years, abortion decisions have been anomalous, allowing facial challenges in ways prohibited for many non-abortion cases. Kennedy’s decision begins to walk that back, returning¯in at least this one instance¯abortion to a more normal standing in the law.
4. The law professor Jonathan Adler notes : "Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday’s Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said, ‘A lot of us wish that Alito weren’t there and O’Connor were there,’ indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O’Connor had provided the fifth vote to invalidate Nebraska’s partial-birth abortion ban in Stenberg v. Carhart ." There are several examples of politicians who voted for the partial-birth ban and then deplored the Supreme Court’s upholding of the constitutionality of that ban¯and it’s a deeply disheartening phenomenon. It means that these politicians didn’t take their oaths seriously. It means they were only positioning themselves politically, hoping the Court would eventually bail them out. And it means that the pro-life credentials of these politicians are illusory.
5. A "chill wind is blowing from Rome," announced one leftist site in a blog post titled " Catholics¯5; The Rest of Us¯Nothing ." The five Catholic justices on the Supreme Court formed¯for the first time since Alito joined the Court¯the complete majority on a decision. I think that we’re probably going to have to wait for the new fund-raising letters from NARAL and Planned Parenthood before we see the highest pitch of anti-Catholic rhetoric coming out of the Carhart decision. But for those who can’t wait, you can find the first groundswells here , here , here , here , here , and here .
As I said, we’ll be talking about all this for a long time to come. Watch for Fr. Neuhaus’ comments tomorrow, with more notes as they come to us.