Topic: Government and Politics

Understanding the U.S. Supreme Court’s Abortion Decision

(This post is scheduled to be published in the summer 2007 volume of the Journal of Clinical Ethics as part of its regular column “Legal Trends in Bioethics.”)

On April 18, 2007, the U.S. Supreme Court handed down its ruling in the combined cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood. The Court overturned two Circuit court decisions and found the Partial-Birth Abortion Ban Act of 2003 constitutional. The federal Act in question is now the law of the land. No state can allow partial-birth abortions unless to save the life of the woman having the procedure.

The Federal Act. The Partial-Birth Abortion Ban Act of 2003 is very specific regarding what type of abortion procedure is prohibited. Not all D&Es are prohibited, only “intact D&Es”, also known as “intact dilation and extraction,” “D&X” or “intact D&X.” The Act is also very specific about the criteria for violations to exist.

The alive fetus must have been delivered to the point where its entire head is outside the body of the mother or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the mother before it is killed by an overt act of the healthcare professional doing the abortion. Any procedure where the fetus has not been delivered to these anatomical landmarks is not prohibited. Note, since the fetus must be alive when it reaches the indicated anatomical landmarks, an intact D&E where the fetus is dead before it reaches these landmarks is not prohibited. Further, since the healthcare provider must have the intention of performing an intact D&E, there is no liability if the procedure accidentally became an intact D&E. The intention issue is a difficult one because some procedures are typically followed right from the beginning of the procedure only if an “intact” D&E is intended. The Act’s language and the Court’s interpretation of the Act seem to define an “intact” D&E as one that has reached the specified landmarks, however, this leaves open the possibility that there is such a thing as what might be technically an “intact” D&E that is not illegal because the required anatomical benchmarks have not been reached. Finally, it is important to note that the Act specifically excludes the abortion recipient of any potential liability under the Act.

The Court’s Majority Opinion. The federal Partial-Birth Abortion Ban Act of 2003 is constitutional. The decision was 5-4. Kennedy wrote the opinion joined by Roberts, Scalia, Thomas and Alito. The majority opinion found that Act is not void for vagueness, not invalid on its face, and does not impose an undue burden due to overbreadth. This is the first time since Roe v. Wade that the Court has upheld a restriction on abortion that does not include a general exception for the health of the mother. In past ruling all restrictions on abortion had to leave the healthcare provider the option of performing the prohibited procedure if there was any health concern at all that justified using that procedure rather than another. This time the Court found it sufficient for the Act to include an exception for the life of the mother, but no general health exception. No less significant health consideration than saving the life of the woman can justify using the intact D&E procedure. The major significance of this ruling is the deference it shows legislative action. The opinion states:

We assume the following principles for the purposes of this opinion. Before viability, a State may not prohibit any women from making the ultimate decision to terminate her pregnancy. It also may not impose upon this right an undue burden, which exists if a regulations’ purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. On the other hand, regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.

The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.

Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.

Considerations of marginal safety, including balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.

(Citations and internal quotation marks omitted).

In addition to a clear deference to legislative action, the majority opinion also shows a lack of deference to individual healthcare providers and their ability to judge what is in the best interest of patients.

The Court’s Dissenting Opinion. Ginsburg wrote a dissenting opinion in which Stevens, Souter, and Breyer joined. Those dissenting would have found the Act unconstitutional. The opinion criticizes the majority for relying on “rational grounds” for upholding State action when in earlier cases the Court has used the standard of “heightened scrutiny.” They also object to the majority’s deviating from the Casey ruling that “state regulation of access to abortion procedures, even after viability, must protect the health of the woman.” (internal quotation marks omitted). The dissenters argue that the majority’s deference to the legislature in overriding constitutional rights deteriorates the gains U.S. society has made in recognizing women as protected by that Constitution and as individuals with the full rights of citizenship. Ginsburg writes:

There was a time, not so long ago, when women were regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution. Those views, this Court made clear in Casey, are no longer consistent with our understanding of the family, the individual, or the Constitution. Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential, the Court recognized, is intimately connected to their ability to control their reproductive lives. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life course, and thus to enjoy equal citizenship stature.

In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman’s health.

(Citations and internal quotation marks omitted).

The As-Applied Challenge. The majority opinion states the Act would be unconstitutional if it exposed women to significant health risks. The Court did not find a prohibition against intact D&Es created such a risk, but it did acknowledge that “preenforcement, as-applied challenges to the Act could be filed as a proper way to protect the health of women should there be “discrete and well defined instances a particular condition has or is likely to occur” where use of intact D&E must be used to protect the health of the mother. While the majority opinion allows for such challenges, it is unclear what such a lawsuit would look like. The dissent asks, “Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E.” I’m sure the answer will be forthcoming soon since lawsuits challenging the Act on as-applied basis are undoubtedly already being planned.

‘Consoler-in-Chief’

I don’t blame President Bush for visiting Virginia Tech the day after the shootings. It probably made some people feel better, and it didn’t do any harm.   

However, it is not healthy for mainstream elites to talk about the presidency as they do in this article from Wednesday’s Washington Post:

“At times like this, [says David Gergen, the president] takes off his cap as commander in chief and puts on the robes of consoler in chief.”

“It’s important for the country to see the one person they decided on as a leader out front and speaking for them in moments like this,” said Joe Lockhart, who served as press secretary for President Bill Clinton.

Leon Panetta, Clinton’s chief of staff, agreed: “In many ways, he is our national chaplain.”

In this case, nothing that comes out of the president’s visit is likely to affect any American’s liberty interests.  But in a larger sense, the expectation that there ought to be a presidential response to any highly visible public event has had a dramatic impact on American liberty over the course of the 20th century and into the 21st.

Here’s an interesting piece from Slate on the Great Coolidge’s resistance to responding to the Mississippi Flood of 1927:

Governors, senators, and mayors asked him to visit the flood zone. “Your coming would center eyes of nation and the consequent publicity would result in securing millions of dollars additional aid for sufferers,” the governor of Mississippi wired. But Coolidge demurred. He declined requests from NBC to broadcast a nationwide radio appeal, and from humorist Will Rogers to send a telegram to be read at a benefit. Taking center stage, Coolidge feared, would feed demands for a greater federal role in dealing with the calamity.

Keeping cool like Coolidge was no longer possible by midcentury. In 1956, political scientist Clinton Rossiter wrote approvingly that faced with “floods in New England or a tornado in Missouri or a railroad strike in Chicago or a panic in Wall Street … the people turn almost instinctively to the White House and its occupant for aid and comfort.”

It’s that reflex that makes the solutions to highly visible news events increasingly federal, increasingly presidential, and, in some cases, increasingly military. There’s something to be said for Silent Cal’s Waspy reticence.

Bon Voyage, Politicians

Senator McCain and Speaker Pelosi have been criticized for their visits to the Middle East, but at least they can claim that their trips were relevant to issues of national importance. Most members of Congress, by contrast, create excuses for junkets to Europe and the Caribbean. Taxpayers pick up the tab for these quasi-vacations - and the price tag is staggering since politicians travel on private jets operated by the military and generally stay in plush hotels. The Examiner explains:

Congress is keeping Andrews Air Force base plenty busy this year ferrying lawmakers all over the globe at taxpayers’ expense. Rep. Bennie Thompson of Mississippi took his wife, nine Democrats and two Republicans - Reps. Dan Lungren of California and Mike Rogers of Alabama - on a whirlwind tour of the Caribbean last week. After stops in Honduras and Mexico, they stopped in the U.S. Virgin Islands, where the delegation stayed at the five-star Caneel Bay resort. In a separate trip to the Caribbean last week, Rep. Eliot Engel of New York squired his wife and four Democratic members to Grenada and Trinidad. All told, the military flew at least 13 congressional delegations to various destinations during the Easter recess – at an estimated rate of $10,000 or more per flying hour. …At the Caneel Bay resort, where room rates reach $1,100 per night, the spokeswoman said Thompson and his wife paid the “government rate.” But, according to the reservations department, Caneel Bay doesn’t “offer any government rates.” …Rep. Jim Oberstar, D-Minn., also led a trip to Belgium over the two-week Easter recess. In February, Sen. Bob Bennett, R-Utah, took a delegation there. “We’re at war with Iraq and Afghanistan, but apparently our members see Belgium as our most urgent international destination,” scoffed one Republican member of Congress.

Too Many Americans Have Their Snouts in the Federal Trough

A disturbing new reports estimates that more than one-half of Americans are somehow dependent on government for their livelihood. This is part of a troubling trend, and has worsened in recent years thanks to the profligacy of the Bush Republicans. Investor’s Business Daily certainly understands the danger of having a nation where the people riding in the wagon out-number (and maybe out-vote) the people pulling the wagon:

Gary Shilling, an economist in Springfield, N.J., figures that 52.6% of Americans, which includes dependents of direct recipients, “now receive significant income from government programs” … the data from 1950, when a mere 28.3% of Americans relied on Washington, that really shows how needy we’ve become. … if the current pace is not abated in 10 years, the percentage could exceed the 55% mark of 1980, the year Reagan was elected on a platform of scaling back the federal behemoth. By 2040, it could be 60%, Shilling reckons. This bodes ill for any prospects of cutting government back to any reasonable size and reforming our messy and intrusive tax system. … when more than half of the country has a financial interest in seeing the government grow, that’s the part of America to which they will cater. That’s certainly not healthy and it is likely unsustainable. … How long before the richest and most productive Americans decide that they will no longer prop up the poorest and least productive? With their political influence waning as that of the untaxed and low-taxed Americans and those who live off the government grows, they can either seek a tax-haven nation where government isn’t a growth industry, or they can choose to be less productive. Neither choice is good for America’s future.

Ron Paul and the Establishment

You get a sense of Ron Paul’s challenge in the Republican presidential race when you look at this Washington Post graphic about early fundraising. Not only is Paul running way behind the frontrunners in the money race, but the Post tells us who some of the notable donors to each candidate are. Mitt Romney is supported, for instance, by Mormon motel mogul J. Willard Marriott. Giuliani has Yankees boss George Steinbrenner. McCain draws support from Henry Kissinger and a managing director of the Carlyle Group. (Can you guess which one is the candidate of the Republican Establishment?) And apparently, the most notable contributor to Ron Paul is … Rob Kampia, director of the Marijuana Policy Project. It’s going to be a long campaign.

For the Democrats, interestingly, the Post eschews listing corporate moguls; instead, it tells us that supporters of the various candidates include Laurence Tribe, Steven Spielberg, Zach Braff, and Paul Newman. Democrats are just so much cooler. And I guess Clinton, Obama, and Edwards just didn’t get any money from The Rich. Funny thing, though, Hillary’s top five zip codes are all in Manhattan, and Obama’s are all in Manhattan or Chicago. Who knew all the hip young TV stars lived in such places? Edwards, however, did pull in a bundle from Beverly Hills 90210.

Sounds Appealing

Jonathan Rauch’s piece on Dwight Eisenhower and the foreign policy vision he handed down to a generation of foreign policy practitioners, includes this little gem:

Eisenhower’s staff secretary and closest aide, Gen. Andrew Goodpaster, once said of his boss, “He was an expert in finding reasons for not doing things.”

Sounds like a good attribute in a president to me.

Volunteer Today!

This is National Volunteer Week – which is really appropriate, since it’s also the week our federal income taxes are due, and the income tax system is based on “voluntary compliance.” No, really, it says so right on the 1040 packet and throughout the IRS website. Indeed, the friendly folks at the IRS acknowledge (.pdf) that some people get the wrong idea because the IRS itself tells taxpayers in the Form 1040 instruction book that the tax system is voluntary.” But if you take their little online test of “Your Role as a Taxpayer,” they explain to you that it is True that “IRS publications state that the tax system is voluntary,” but it is also True that “The government has the right to force me to pay my taxes and charge me penalties for not paying taxes.” Go figure.

Anyway, if you have any time or money left after paying your taxes, consider doing some volunteer work.