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.

Free For All Blog

Harvey Silverglate and Wendy Kaminer have launched a new blog–Free For All.

Here is how they describe their joint venture:

As the name signifies, The Free for All is a running commentary on the state of the American citizen’s (and sometimes the non-citizen’s) personal freedoms and civil liberties in the hectic, dangerous, confusing, hypocritical, stupid, and oftentimes near-insane modern era. Like my long-running Freedom Watch columns, The Free for All will seek to analyze the impact of various cultural, political, legal, academic and media stories du jour relating to the American promise of “liberty and justice for all.”

Wendy and I chose the name The Free for All to underscore the blog’s commitment to unfettered, no-holds-barred discussion. While Wendy and I are both what I call libertarian liberals (she might disagree with this label, since she often disagrees with me even when I’m right!), there are very few issues on which we see exactly eye-to-eye. By taking our once private debates into the public domain, we hope to create a resource for those of you who, like the two of us, are similarly trying to make sense of today’s headlines.

Recent posts express their skepticism about the ability to prevent school shootings by ‘profiling’ potential shooters.

One-Half Cheer for a Weaker Dollar

I spent two days last week in Oslo, Norway, for a conference and naturally wanted to sample one of the country’s fine beers. My pint of Ringes was served cold at Lorry’s, a popular and slightly low-brow pub near the Royal Palace. I nursed it slowly because it cost 61 kronor, which converts to slightly more than $10.

It seems I’m not the only American traveling abroad these days who has found that our once mighty dollars do not go as far as they used to. As this morning’s Investor’s Business Daily reports:

The dollar last week sank to a 26-year low against the British pound and is nearing record lows vs. the euro. Even the lowly Japanese yen has gained some ground against the greenback. 

Analysts say the dollar’s fall is the result of a cyclical shift in the global economy: Growth and interest rates in Europe and Asia are outpacing those in America, drawing capital away from U.S. stocks, bonds and other assets.

Most politicians and many economists believe that a weaker dollar is just what the U.S. economy needs. A depreciated dollar means U.S. exports are more affordable abroad and imports more expensive at home, promoting sales and profits for U.S. exporters and putting downward pressure on the trade deficit. 

Count me on the side of Milton Friedman in believing that exchange rates should float freely without government interference. But excuse me if I can’t work up much enthusiasm for the depreciating dollar. And it isn’t just because I want to pay less for a beer in Oslo.  

A weaker currency cuts like a double-edged sword in our domestic economy. On the downside, it raises prices for millions of American families that buy imported clothing, shoes, food, and consumer electronics.  It raises input costs for U.S. businesses. It puts upward pressure on the price of oil, which is universally quoted in dollars.  In fact, I counted the many ways in which we will all pay for a weaker dollar in an op-ed a few months ago. (Don’t be fooled by the headline written by a distracted copy editor!) 

So pardon me if I don’t lift a hearty toast to the weaker dollar.

Against Software Patents

Over at the American, I’ve got an article on what I regard as one of the biggest threats to the long-term vitality of the software industry: the patentability of software. Last year, we saw a company with no products of its own extort $612 million from Research in Motion, makers of the wildly popular BlackBerry mobile devices. Last month, Vonage, a company that pioneered Internet telephony, was ordered to pay $58 million to Verizon and enjoined from signing up new customers. Vonage is appearing in court today to appeal the decision. Given that Vonage has yet to turn a profit, if the injunction is upheld it’s likely to be a death sentence for the company.

The really frustrating thing about both cases—and numerous other software patent cases in recent years—is that there was no allegation that the defendants’ products were in any way based on the plaintiffs’ technologies. It’s universally agreed that RIM and Vonage developed their technologies independently. Rather, the problem is that the patents in question cover extremely broad concepts: essentially “wireless email” in NTP’s case, and “translating between Internet addresses and phone numbers” in Verizon’s. It’s simply impossible to develop a mobile device that doesn’t check email wirelessly, or an Internet telephony application that doesn’t translate between IP addresses and phone numbers.

It seems to me that these sorts of problems are almost inevitable when you allow patents on software, because software is built out of a very large number of modular components. (A typical software product might have 100,000 lines of code, and just a handful of lines of code could conceivably be considered an “invention”) If you allow a significant number of those components to be patented, it becomes prohibitively expensive for software companies to even find, much less license, all of the patents that might be relevant to their particular software. And indeed, most software companies don’t even try. Many deliberately avoid doing patent searches, because “willful” infringement can carry heightened penalties.

Software patents are a relatively new judicial innovation, and one that has never been explicitly ratified by the Supreme Court. Traditionally, the Supreme Court has held that software is essentially the description of a mathematical algorithm, and that mathematical algorithms are not eligible for patent protection. The Supreme Court opened the door to software patents a crack in 1981 when it held that a machine for curing rubber was not rendered ineligible for patent protection merely because one component of the machine was implemented through software. However, it emphasized that software per se is not eligible for patent protection.

The Court of Appeals for the Federal Circuit, which was created by Congress in 1982 and given jurisdiction over patent appeals, turned this principle on its head. In 1998, they ruled that a software patent merely had to produce “a useful, concrete and tangible result” to avoid the prohibition on patenting mathematical algorithms. Because no one would bother to patent software that didn’t produce a useful result, this effectively gave the patent office carte blanche to approve software patents.

And approve them they have. The patent office set a new record last year by issuing about 40,000 software patents. That represents hundreds of millions of dollars of patent lawyers’ and software engineers’ time that could otherwise have been spent producing useful software rather than filing for patents about it.

Luckily, the Supreme Court has an opportunity to bring this madness to an end in the case of Microsoft v. AT&T. Although the case is primarily about whether companies can be liable for copies of their software that is distributed overseas, the Software Freedom Law Center has filed an amicus brief urging the court to rule that software companies are not liable for overseas software distribution because software isn’t patentable in the first place. I think this argument is a bit of a long shot, since most of the briefs in the case did not focus on the patentability of software, however several justices in oral argument did specifically ask about the question, and the decison could open the door to a subsequent case directly addressing the question.

Since the Middle East Is Under Control, Let’s Rattle Russia’s Cage

Fred Kaplan has a sharp piece on Slate on the recent push to deploy a missile defense system in the Czech Republic and Poland, and the inevitable Russian fits over same.

The only thing I’d add to the Kaplan piece is to observe the ongoing and remarkable refusal on the part of the administration to accept the concept of tradeoffs in its foreign policy. We would like it very much if the Russians would become more amenable to adopting a US-friendly approach on Iran in the Security Council. Fine. But to expect them to do so while we steamroll their interests in Central and Eastern Europe is more than a bit naive.

Getting It Wrong (Again) on Social Security

Yesterday, the Social Security Trustees released their annual report on the programs finances and much of the national news media thought they saw good news. “Extra Year Expected for Retirement Funds,” was a typical headline, with nearly all the media reports focusing on the Trustees’ projection that the Social Security Trust Fund would be exhausted in 2041, a year later than was projected last year.

But, of course, that date is meaningless. The Trust Fund is not a pile of money that can be used to pay Social Security benefits. It is simply an accounting measure of how much money the system owes, a collection of IOUs. No one explained it better than the Clinton administration in its 2000 budget message.

These Trust Fund balances are available to finance future benefit payments…but only in a bookkeeping sense….They do not consist of real economic assets that can be drawn down in the future to fund benefits. Instead, they are claims on the Treasury that, when redeemed, will have to be financed by raising taxes, borrowing from the public, or reducing benefits or other expenditures. The existence of large Trust Fund balances, therefore, does not by itself have any impact on the government’s ability to pay benefits.

The important date in the Trustees’ Report is 2017, just 10 years from now. That is when Social Security will begin running a deficit. At that point, Social Security will have to begin redeeming the special issue bonds held by the Trust Fund. Since the federal government has no extra money with which to redeem these bonds (note our ongoing budget deficit), it will have to raise taxes, borrow more, or cut other government spending.

Moreover, the failure to reform Social Security has allowed the program’s financial problems to get worse. The system’s total unfunded liabilities are now $15.6 trillion (in discounted present value terms). That’s $100 billion worse than last year, despite $600 billion in savings from changes in technical assumptions.  And, of course, workers still have no legal, contractual, or property rights to their benefits.

That doesn’t sound much like good news to me.

If Inequality Is Okay, Let’s Redistribute Anyway

In an outstanding post, Alex Tabarrok explains how the changing economic and technological conditions that helped Harry Potter creator J.K. Rowling become a billionaire lead to inequality without apparent injustice.

Matthew Yglesias’s reply puzzled me:

Insofar as this is a large part of the inequality story, it does tend to undercut highly moralized objections to the right [to be] so darn rich. Rowling isn’t doing anything wrong to get so rich. But on the other hand, insofar as this story is right, it also seems to me that the primary pragmatic worries one might have about pro-equality measures likewise tend to melt away. If the very best in a range of fields are just bound to reap enormous windfall earnings under current technological conditions then it seems unlikely that tax measures aimed at limiting the size of those windfalls would significantly deter anyone from doing their work. One doubts Rowling set about down this path because she thought it stood any reasonable chance of making her a billionaire.

I am confused. If Alex’s account “tends to undercut” the moralized objection to wealth inequality generated by superstar effects, then it also tends to undercut a large part of the motivation for wealth-equalizing confiscation and redistribution, namely, so-called “distributive justice.” Despite his misguided insistence in referring to a sum created by millions of voluntary acts of exchange as a “windfall,” Matt has, it seems, conceded that Rowling’s riches have been justly earned–that the process by which all this money got “distributed” to her is fair. So there is no question of exploitation, injustice, cause for redress, etc. Nevertheless, Matt would like us to know that should political elites decide to confiscate a good portion of Rowling’s fortune anyway, despite the fact that she owns it justly, this policy may not actually be self-undermining in the long run. But then, what is the point of this kind of “pro-equality” redistribution once it is agreed that there was no moral objection to the prior distribution? I’m sure Matt has something in mind, and I hope he’ll share it.

In any case, regarding the “pragmatic” case for taxing superstars, in The Winner Takes-All Society, Robert Frank and Philip Cook argue that huge payouts for superstars induce inefficient overinvestment in their fields. The point of taxing superstars, on this account, is precisely to limit entry into superstar fields and to channel human capital investment that will otherwise be wasted in the largely futile attempt to become NBA players or Hollywood screen legends into more socially productive uses. Frank and Cook acknowledge that this may result in a reduced supply of excellence in certain fields, but argue that this loss is more than offset by more mundane economic gains from increased efficiency in the allocation of skills to people. Even if we don’t get the best rock stars, we’ll still have good rock stars, and we’ll have fewer people wasting productive years trying to be rock stars. And lower levels of inequality!

Now, I don’t know about Rowling’s motivations in particular, but Frank and Cook’s argument – the most sophisticated case I’m aware of for raising taxing on superstars – seems to me to undercut Matt’s general point. If Matt would like to change his argument to “Sure, by sticking it to big-money authors we might not have gotten Harry Potter, but we would have gotten offsetting returns from increased output among schoolteachers and lawyers, and a decrease in inequality,” then I’ll be happy to argue against that instead. As it stands, his current argument seems wrong both as a matter of morality and a matter of pragmatism.