Laying pro-life groundwork.

The Supreme Court has upheld a partial-birth abortion ban by a 5-4 vote, and a careful reading of the opinion reveals that Gonzales v. Carhart is a solid work of jurisprudence that not only protects babies from partial-birth abortion but also lays the groundwork for future pro-life victories.

For decades, the federal courts have used a three-tier standard to analyze constitutional-rights cases. Cases involving "preferred" rights such as speech and press are classed as "upper tier," which means governmental agencies can infringe upon those rights only if they can demonstrate a compelling state interest that cannot be achieved by less restrictive means. "Middle tier" rights, such as the right to be free from gender discrimination, can be infringed only upon a showing that the regulation bears a substantial relationship to an important governmental interest. "Lower tier" rights, such as property rights, can be infringed whenever the government can demonstrate that the restriction bears a reasonable relationship to a legitimate governmental interest.

Although this three-tier analysis has no grounding in the Constitution, it is crucial to understand how the courts adjudicate constitutionally protected rights. It is far easier to prove that a law bears a reasonable relationship to a legitimate state purpose, than to prove that the state has a compelling interest that cannot be achieved by less restrictive means. To give abortion constitutional protection and insulate the procedure from future attack, Justice Blackmun in the 1973 Roe v. Wade decision classified abortion as a fundamental "upper tier" right. He then arbitrarily declared that the state's interest in the life of the child becomes compelling only at the point of viability (when the child is capable of surviving outside the womb), which he equated with the beginning of the third trimester of pregnancy.

The most important holding of Gonzales is that "the government has a legitimate and substantial interest in preserving and promoting fetal life." Abortion is now a middle-tier rather than an upper-tier right; consequently, restrictions on abortion that might previously have been struck down are now more likely to be upheld. And Justice Kennedy has blurred, if not utterly swept away, the "viability" test for determining whether the state can protect fetal life. Regulations that protect the unborn child prior to viability are now ...