Justice Kennedy's Pro-Choice Opinion

Last week's decision by the Supreme Court in Gonzales v. Carhart, in which the Court affirmed the constitutionality of the federal Partial Birth Abortion Act of 2003, is seen wrongly on both the left and the right as a major victory for abortion foes in this country. In some important ways Justice Kennedy's opinion strengthens the pro-choice side, confounding the immediate impressions of many.

For example, the New York Times reported that the decision "gav[e] the anti-abortion movement one of its biggest legal victories in years."  Planned Parenthood decried  the Court's "reckless" and "devastating" decision, which was the result of "ideological hardliners" appointed by President Bush.  Planned Parenthood further acidly noted that its opponents "can hardly contain themselves" over the decision.  Indeed, the Washington Post quoted Roberta Combs, president of the Christian Coalition of America, as predicting that "it is just a matter of time before the infamous Roe v. Wade . . . will also be struck down by the Court."  Larry Kudlow, writing on National Review's The Corner, crowed that the decision "was great news -- a life-affirming decision banning a truly appalling procedure.  It scored a big, much-needed victory for the life of the precious unborn."  The reaction to the Gonzales decision by Republican and Democratic politicians followed along similar partisan lines.

In my opinion, the Wall Street Journal offered a much more accurate assessment of the impact of the case.  The WSJ noted that the decision does not overturn, or even limit the Court's prior rulings in Roe and Planned Parenthood v. Casey (1992) (which affirmed Roe's "essential holding" and adopted an "undue burden" test for judging abortion laws).  On the contrary, the Gonzales decision expressly relies upon the Casey standard.  (Slip. Op. at 15-16.)  The WSJ then concluded:  "The Court has shown a very modest new deference to the will of the voters on abortion, but no more." 

I agree.  But I believe that even the WSJ failed to appreciate the fundamentally pro-choice nature of the Court's decision in Gonzales.  Of course, the Court's decision was in some sense "historic," when viewed in the context of the last thirty years of consistently pro-choice abortion rulings; and we should be thankful for even the most meager progress in this area.  Nevertheless, the Gonzales decision does not represent the "victory" that pro-life forces were hoping for.

The Court's opinion in Gonzales was written by Justice Kennedy, who along with Justice O'Connor and Justice Souter authored the controlling plurality opinion in Casey. Make no mistake, Justice Kennedy falls squarely within the pro-choice camp on the abortion question.  He believes there is a "constitutional right" to terminate the life of an unborn baby.  (Yes, I purposely use quotation marks around "constitutional right" when referring to abortion because this is a preposterous and, quite frankly, ultra vires interpretation of the Constitution.)  Yet in Stenberg (in which he dissented) and now in Gonzales, Justice Kennedy has shown that there are, apparently, some limits to his support for an untrammeled "constitutional right" to abortion.  A close examination of his opinion in Gonzales, however, reveals that these limits, in fact, amount to no limits at all.

As Justice Kennedy noted near the start of his opinion, the Partial Birth Abortion Act of 2003 "proscribes a particular manner of ending fetal life."  (Slip. Op. at 3.)  In affirming the constitutionality of the Act, therefore, the Court appears to be upholding a ban on "partial birth abortions."  As noted above, most interest groups, commentators, and politicians have so understood the decision.  This is not correct.  The Court in Gonzales simply refused to strike down the statute itself on the grounds that it is "facially" unconstitutional (i.e., unconstitutional no matter how applied in practice).  Throughout his opinion, however, Justice Kennedy repeatedly identified ways in which an abortion doctor still could perform a partial birth abortion, or similarly barbaric late-term abortion, without running afoul of the statute.  In other words, although upholding the statute in theory, Justice Kennedy's decision provides a blueprint for the continuation of partial birth abortions in practice.  For example:

  • "The Act does not restrict an abortion procedure involving the delivery of an expired [i.e, dead] fetus." (Slip. Op. at 17.) Hence, methods of late-term abortion that involve killing the fetus before the procedure takes place are not prohibited.
  • The Act defines "partial birth abortion" by reference to specific "anatomical landmarks" involved in the delivery of the live fetus before it is killed and removed from the mother's body. Thus, "if an abortion procedure does not involve the delivery of a living fetus to one of these 'anatomical landmarks' . . . the prohibitions of the Act do not apply." (Slip. Op. at 17.) Hence, slightly altering where the fetus is physically located at the time it is killed will render the procedure lawful. (See Slip. Op. at 25-26.)
  • The Act also contains "scienter requirements involving all the actions involved in the prohibited abortion," meaning that the abortion doctor must intend to violate its provisions in order to be held criminally responsible under the Act. (Slip. Op. at 17-18.) In other words, as Justice Kennedy helpfully explained, "if a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable." (Id.) Hence, even the prohibited form of partial birth abortion still can take place so long as the doctor claims he "accidentally" or "inadvertently" failed to perform the procedure in a lawful manner.
  • "The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability." (Slip. Op. at 20-21.) Hence, late term abortions in which the fetus is "disarticulated" -- i.e., cut or torn into pieces as it is being removed from the mother's body -- do not violate the statute. Even if the prohibited form of partial birth abortion happens to occur during this process, no criminal liability can be imposed because such an outcome was not intended by the doctor. (See Slip. Op. at 24.)
  • "The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E [in which the fetus is removed in pieces]. . . . If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure." (Slip. Op. at 34-35.) Hence, as mentioned above, simply killing the fetus at the start of the procedure will render it lawful.
And so on.

The particulars of Justice Kennedy's opinion, of course, mirror the specific provisions of the Partial Birth Abortion Act of 2003.  That statute was narrowly drawn by Congress to avoid being declared unconstitutional in light of the Supreme Court's decision in Stenberg.  (See Slip. Op. at 21-23.)  Significantly, what Justice Kennedy has done in Gonzales is to establish, as a matter of Supreme Court precedent, that such a narrowly-drawn -- and therefore easily evaded -- statute is the only anti-abortion legislation that will be deemed constitutional.  In my opinion, had the Act not been susceptible to such a restrictive interpretation, Justice Kennedy would have joined the four dissenting justices (despite his dissent in Stenberg) in order to avoid a true conservative power shift on the Court.  Justice Kennedy is pro-choice, after all. 

But by seemingly giving an inch to the pro-life position, Justice Kennedy shrewedly preserved the Supreme Court's existing abortion jurisprudence, which imposes almost no limitations on the ability of women and girls to terminate their pregnancies for any reason at any stage of gestation.  Ironically, he was helped in this task by the Court's four more conservative justices.

In short, far from demonstrating the new power of the conservative wing of the Supreme Court, Gonzales illustrates how tenuous that power truly is.  Unless and until one of the four dissenting justices in Gonzales is replaced by a reliable conservative judge -- which will never happen if the Republican Party does not win the presidency in 2008 -- the Supreme Court "counter-revolution" long hoped for by political and religious conservatives in this country will not occur.

Contact Steven M. Warshawsky 
Last week's decision by the Supreme Court in Gonzales v. Carhart, in which the Court affirmed the constitutionality of the federal Partial Birth Abortion Act of 2003, is seen wrongly on both the left and the right as a major victory for abortion foes in this country. In some important ways Justice Kennedy's opinion strengthens the pro-choice side, confounding the immediate impressions of many.

For example, the New York Times reported that the decision "gav[e] the anti-abortion movement one of its biggest legal victories in years."  Planned Parenthood decried  the Court's "reckless" and "devastating" decision, which was the result of "ideological hardliners" appointed by President Bush.  Planned Parenthood further acidly noted that its opponents "can hardly contain themselves" over the decision.  Indeed, the Washington Post quoted Roberta Combs, president of the Christian Coalition of America, as predicting that "it is just a matter of time before the infamous Roe v. Wade . . . will also be struck down by the Court."  Larry Kudlow, writing on National Review's The Corner, crowed that the decision "was great news -- a life-affirming decision banning a truly appalling procedure.  It scored a big, much-needed victory for the life of the precious unborn."  The reaction to the Gonzales decision by Republican and Democratic politicians followed along similar partisan lines.

In my opinion, the Wall Street Journal offered a much more accurate assessment of the impact of the case.  The WSJ noted that the decision does not overturn, or even limit the Court's prior rulings in Roe and Planned Parenthood v. Casey (1992) (which affirmed Roe's "essential holding" and adopted an "undue burden" test for judging abortion laws).  On the contrary, the Gonzales decision expressly relies upon the Casey standard.  (Slip. Op. at 15-16.)  The WSJ then concluded:  "The Court has shown a very modest new deference to the will of the voters on abortion, but no more." 

I agree.  But I believe that even the WSJ failed to appreciate the fundamentally pro-choice nature of the Court's decision in Gonzales.  Of course, the Court's decision was in some sense "historic," when viewed in the context of the last thirty years of consistently pro-choice abortion rulings; and we should be thankful for even the most meager progress in this area.  Nevertheless, the Gonzales decision does not represent the "victory" that pro-life forces were hoping for.

The Court's opinion in Gonzales was written by Justice Kennedy, who along with Justice O'Connor and Justice Souter authored the controlling plurality opinion in Casey. Make no mistake, Justice Kennedy falls squarely within the pro-choice camp on the abortion question.  He believes there is a "constitutional right" to terminate the life of an unborn baby.  (Yes, I purposely use quotation marks around "constitutional right" when referring to abortion because this is a preposterous and, quite frankly, ultra vires interpretation of the Constitution.)  Yet in Stenberg (in which he dissented) and now in Gonzales, Justice Kennedy has shown that there are, apparently, some limits to his support for an untrammeled "constitutional right" to abortion.  A close examination of his opinion in Gonzales, however, reveals that these limits, in fact, amount to no limits at all.

As Justice Kennedy noted near the start of his opinion, the Partial Birth Abortion Act of 2003 "proscribes a particular manner of ending fetal life."  (Slip. Op. at 3.)  In affirming the constitutionality of the Act, therefore, the Court appears to be upholding a ban on "partial birth abortions."  As noted above, most interest groups, commentators, and politicians have so understood the decision.  This is not correct.  The Court in Gonzales simply refused to strike down the statute itself on the grounds that it is "facially" unconstitutional (i.e., unconstitutional no matter how applied in practice).  Throughout his opinion, however, Justice Kennedy repeatedly identified ways in which an abortion doctor still could perform a partial birth abortion, or similarly barbaric late-term abortion, without running afoul of the statute.  In other words, although upholding the statute in theory, Justice Kennedy's decision provides a blueprint for the continuation of partial birth abortions in practice.  For example:

  • "The Act does not restrict an abortion procedure involving the delivery of an expired [i.e, dead] fetus." (Slip. Op. at 17.) Hence, methods of late-term abortion that involve killing the fetus before the procedure takes place are not prohibited.
  • The Act defines "partial birth abortion" by reference to specific "anatomical landmarks" involved in the delivery of the live fetus before it is killed and removed from the mother's body. Thus, "if an abortion procedure does not involve the delivery of a living fetus to one of these 'anatomical landmarks' . . . the prohibitions of the Act do not apply." (Slip. Op. at 17.) Hence, slightly altering where the fetus is physically located at the time it is killed will render the procedure lawful. (See Slip. Op. at 25-26.)
  • The Act also contains "scienter requirements involving all the actions involved in the prohibited abortion," meaning that the abortion doctor must intend to violate its provisions in order to be held criminally responsible under the Act. (Slip. Op. at 17-18.) In other words, as Justice Kennedy helpfully explained, "if a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable." (Id.) Hence, even the prohibited form of partial birth abortion still can take place so long as the doctor claims he "accidentally" or "inadvertently" failed to perform the procedure in a lawful manner.
  • "The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability." (Slip. Op. at 20-21.) Hence, late term abortions in which the fetus is "disarticulated" -- i.e., cut or torn into pieces as it is being removed from the mother's body -- do not violate the statute. Even if the prohibited form of partial birth abortion happens to occur during this process, no criminal liability can be imposed because such an outcome was not intended by the doctor. (See Slip. Op. at 24.)
  • "The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E [in which the fetus is removed in pieces]. . . . If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure." (Slip. Op. at 34-35.) Hence, as mentioned above, simply killing the fetus at the start of the procedure will render it lawful.
And so on.

The particulars of Justice Kennedy's opinion, of course, mirror the specific provisions of the Partial Birth Abortion Act of 2003.  That statute was narrowly drawn by Congress to avoid being declared unconstitutional in light of the Supreme Court's decision in Stenberg.  (See Slip. Op. at 21-23.)  Significantly, what Justice Kennedy has done in Gonzales is to establish, as a matter of Supreme Court precedent, that such a narrowly-drawn -- and therefore easily evaded -- statute is the only anti-abortion legislation that will be deemed constitutional.  In my opinion, had the Act not been susceptible to such a restrictive interpretation, Justice Kennedy would have joined the four dissenting justices (despite his dissent in Stenberg) in order to avoid a true conservative power shift on the Court.  Justice Kennedy is pro-choice, after all. 

But by seemingly giving an inch to the pro-life position, Justice Kennedy shrewedly preserved the Supreme Court's existing abortion jurisprudence, which imposes almost no limitations on the ability of women and girls to terminate their pregnancies for any reason at any stage of gestation.  Ironically, he was helped in this task by the Court's four more conservative justices.

In short, far from demonstrating the new power of the conservative wing of the Supreme Court, Gonzales illustrates how tenuous that power truly is.  Unless and until one of the four dissenting justices in Gonzales is replaced by a reliable conservative judge -- which will never happen if the Republican Party does not win the presidency in 2008 -- the Supreme Court "counter-revolution" long hoped for by political and religious conservatives in this country will not occur.

Contact Steven M. Warshawsky