One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights.  Exhibit A:  The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart. 

The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart:  ban partial birth abortion without providing any exception for the health of the mother.  Why does Congress think it can tread where Nebraska couldn’t?  Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health.  The Solicitor General, in turn, contends that those findings deserve deference.

Now, I’m no fan of Roe or partial birth abortion.  But the case is about more than abortion:  If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.

The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving.  Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military.  Should that trigger a compelling interest exception to strict racial neutrality?  Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40?  Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?

If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.

This danger underscores one of the toxic costs of Roe:  When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges.  Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.

Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:

1.  Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure. 

2.  Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.

3.  Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter.  Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.  

By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny.  By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs.  (Of course, the Court could go even farther:  by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)

The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban.  Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny.  And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.