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COPYRIGHT 2008 Harvard Society for Law and Public Policy, Inc.
INTRODUCTION
I. THE "CONSTITUTIONAL" LAW GOVERNING ABORTION A. The Right of Privacy B. The Right to Abortion 1. Roe v. Wade 2. The Reaction to Roe 3. Refining Roe 4. Analyzing the Post-Roe Cases 5. Planned Parenthood v. Casey 6. Critiquing Casey II. THE BATTLE OVER PARTIAL-BIRTH ABORTION A. Stenberg v. Carhart 1. The Court's Decision 2. The Reaction to Stenberg B. The Congressional Ban on Partial-Birth Abortion 1. The Statute 2. Gonzales v. Carhart 3. An Analysis of Gonzales III. THE CONVERGENCE OF CONSTITUTIONAL LAW AND POLITICS A. The Common Law of the Constitution B. A Critique of Modern Constitutional Decision Making CONCLUSION
INTRODUCTION
Gonzales v. Carhart (1) continues the Supreme Court's haphazard development of its abortion jurisprudence--and neatly illustrates everything that has gone awry in modern constitutional law. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, concluded that the federal Partial-Birth Abortion Ban Act of 2003 (PBABA) (2) did not, on its face, unduly burden a woman's constitutional right to obtain an abortion. (3) Justices Thomas and Scalia would have upheld the statute simply because "the Court's abortion jurisprudence ... has no basis in the Constitution." (4) Justice Ginsburg and three other dissenters argued that the PBABA was indistinguishable from a state law that the Court previously had struck down in Stenberg v. Carhart. (5) Meanwhile, all of the Justices simply assumed Congress had the power to enact the challenged legislation. (6)
Gonzales followed a familiar pattern. Despite the new Chief Justice's professed desire to avoid splintered decisions, (7) the Court divided into moderate, conservative, and liberal camps-just as it has done with other contentious issues such as school integration, free speech, and the due process rights of enemy combatants. (8) As usual, the Justices applied a murky common law to reach results that tracked their ideological views. (9) Finally, the Court once again increased its own power and that of Congress. (10)
Gonzales exemplifies the modern disintegration of the ideal of "the Court" expounding "the Constitution"--i.e., its language read in light of its underlying political structure and theory, its drafting and ratification history, and the understandings manifested by those who implemented its provisions for over a century. Rather, individual Justices have employed an eccentric version of common law. (11)
In the Anglo-American system, legislatures make rules expressing their constituents' preferred policies, but sometimes delegate this power in certain areas (e.g., property, contracts, and torts) to courts, which gradually develop the law on a case-by-case basis. (12) Stare decisis commands judges to follow established precedent absent compelling reasons for departure-most pertinently, concerns that a rule has become unacceptable in light of changed social conditions. (13) Moreover, common law is subject to legislative override. (14)
This traditional, and restrained, model of adjudication has not been faithfully applied in contemporary constitutional adjudication. Most notably, constitutional law has been marked by abrupt shifts, not incremental doctrinal tinkering. For instance, in 1937, the Court suddenly abandoned a century-and-a-half of case law imposing limits on Congress and instead interpreted Article I as conferring virtually untrammeled legislative power. (15) This turnaround reflected five Justices' perception of sound governmental and economic policy during the Depression. (16) President Roosevelt solidified this jurisprudence by appointing Justices based primarily on their political commitment to the New Deal, not on judicial experience or legal acumen. (17) A generation later, the Warren Court dismantled most precedent concerning individual rights and reinterpreted the Constitution to implement ideas about liberty and equality that incorporated progressive social and moral views. (18) Even the supposedly conservative Burger and Rehnquist Courts occasionally unleashed unprecedented thunderbolts, such as Roe v. Wade. (19)
These transformative cases have survived largely intact because of a coalition between two groups of Justices. First, those who joined the original opinions and their like-minded successors have voted to retain, and sometimes extend, the landmark decisions. Second, swing Justices (typically moderate Republicans like Stewart, Powell, O'Connor, and Kennedy) have tended to follow the basic precedents, sometimes with modifications. (20) Their stated justification has been stare decisis, (21) but their willingness to overturn precedent in other areas suggests that they selectively invoke this doctrine to disguise personal or policy judgments. (22) Finally, a third group of Justices--including those who dissented in the original cases and their sympathetic successors--often have tried to overrule these decisions or limit them to the extent practicable. (23)
Unlike in common law, then, stare decisis has little binding force in constitutional derision making. Some Justices have maintained that this is so because the fundamental law is the Constitution itself, not judicial interpretations of it. (24) More pragmatic Justices have invoked stare decisis when they wanted to reach a result that was dubious under conventional constitutional analysis, but have ignored this doctrine when they wished to achieve a different policy outcome that conflicted with precedent. (25)
Furthermore, no legislative oversight of constitutional common law is permitted. Because the modern Court has adopted the ahistorical idea that it is the sole legitimate interpreter of the Constitution, (26) it has resisted congressional efforts to correct its mistakes, even in ways that enhance individual liberty. (27)
In short, constitutional adjudication involves an idiosyncratic common law in which stare decisis is either invoked selectively (to defend a previous revolutionary case implementing some preferred policy that had no constitutional roots) or flatly rejected, prior decisions are freely modified, and legislatures have no input. This approach makes it accurate, but somewhat beside the point, to criticize the Court for its lack of fidelity to the written Constitution. Rather, it would seem more sensible to evaluate the Justices' work under traditional common law standards, which focus on whether a decision maintains consistency with earlier holdings while developing the law in a fashion that achieves the soundest possible policy position. Under this test, many of the Court's constitutional cases fare poorly.
Realists, however, would judge constitutional opinions simply based on their agreement or disagreement with the outcome--and would support Justices who will pursue their political and ideological goals. (28) Most Americans have become realists. Although many would contend that such pragmatism is healthy, I believe it has irreversibly corroded the idea of the Constitution as fundamental law.
This Article explores three aspects of Gonzales. Part I places this case in the context of the major abortion decisions. The Court has frankly admitted that its abortion jurisprudence has no foundation in the Constitution as originally intended, understood, and implemented, but rather embodies evolving constitutional "ideals" of privacy, liberty, and equality. Measured by classical common law standards, this case law retains one consistent thread--women have a right to abortion before fetal viability--but otherwise lacks coherence. Realistically, evaluations of the Court's decisions depend almost entirely on one's personal views about abortion.
Part II examines the partial-birth abortion litigation and reaches two conclusions. First, contrary to popular belief, Gonzales did not represent a major shift that will lead the Court to reject or severely curtail abortion rights. Indeed, only Justices Scalia and Thomas favored such a radical change, which is a cornerstone of the conservative policy agenda. (29) By contrast, four of their colleagues (Justices Stevens, Souter, Ginsburg, and Breyer) have embraced the diametrically opposite--and mainstream liberal--position of "abortion on demand." (30) The three swing Justices (Roberts, Kennedy, and Alito) not only refused to question the basic right to abortion, but also suggested that even laws banning partial-birth abortion might be unconstitutional as applied. (31) This remarkably narrow opinion adopts an incremental approach characteristic of classical common law. Although a dramatic reversal is always possible, it seems highly unlikely given the Court's current membership. Second, the Justices' exclusive focus on the individual right to abortion, mirrored by scholars, has obscured a critical constitutional issue: the judiciary's acquiescence to Congress's contestable assertion that its ban on partial-birth abortion is a valid exercise of its power to regulate interstate commerce. (32)
Part III argues that Gonzales is part of a broader, decades-long movement that has rendered the process and substance of constitutional decision making almost indistinguishable from simple politics. The most notorious example is Bush v. Gore, (33) in which five conservative Republican Justices reversed a Florida Supreme Court judgment ordering that contested ballots in a presidential election recount be determined by applying the state's statutory "intent of the voter" standard. (34) The majority held that this procedure violated a freshly minted equal protection right to uniform criteria in judging ballots and therefore halted the recount, (35) thereby ensuring the election of a conservative Republican President. Bush v. Gore compromised the credibility of the Justices in the majority, who had previously stressed their commitment to enforcing the Constitution as written, exercising judicial restraint, and deferring to state authorities. (36) Hence, when self-professed "originalists" like Justices Thomas and Scalia actually do adhere to the Constitution's textual and historical meaning in areas like abortion, (37) a now-skeptical public tends to assume that they are merely following their political and ideological views, (38) despite other opinions where they clearly have not done so. (39)
I recognize, of course, that the Justices face a difficult problem in reconciling often conflicting constitutional materials that might reasonably lead to different outcomes. The solution, however, should not be to adopt a wholly discretionary, pragmatic common law approach--or to apply originalism selectively. Rather, I have long advocated an apolitical "NeoFederalist" methodology, which proceeds in two stages. (40) The first consists of attempting to recapture, in light of the Constitution's structure and underlying political theory, its original "meaning" (the ordinary definition of its terms), "intent" (the purpose of its drafters), and "understanding" (the sense of its ratifiers and early implementers in all three branches). (41) The second step is to apply those originalist principles that retain vitality in addressing modern problems, given two centuries of intervening changes. (42) Neo-Federalism can yield legal rules that are genuinely rooted in the Constitution, yet work far better in practice than doctrines the Court has improvised in a common law manner. (43)
Adoption of such an approach would help restore the idea that the Constitution is law. Admittedly, it might be quixotic to expect the Court to begin paying more attention to the Constitution and less to its interpretive opinions, because those who enjoy virtually unbridled discretion are loath to relinquish it. Nonetheless, if the Justices continue to apply their impressionistic and politicized constitutional common law, they cannot legitimately complain about the growing public perception of the Court as just another political organ.
I. THE "CONSTITUTIONAL" LAW GOVERNING ABORTION
The vast majority of Americans, including those who favor a right to choose during the early stages of pregnancy, support laws that prohibit partial-birth abortion. (44) Indeed, most people would find strange the notion that the Constitution forbids such legislation. To understand why the Court takes this claim seriously, it is necessary to consider the cases which created the right of privacy and then extended this right to abortion.
A. The Right of Privacy
In Griswold v. Connecticut, (45) the Court discovered in the Constitution a right of privacy that included the freedom of married couples to use contraceptives, and accordingly struck down a state law prohibiting such activity. (46) The Justices could not, however, agree on the source of this right.
Writing for the majority, Justice Douglas found privacy to be implicit in the First, Third, Fourth, and Fifth Amendments: "[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy." (47) Justice Goldberg and two colleagues concurred, but asserted that marital privacy was one of the unenumerated fundamental rights "retained by the people" in the Ninth Amendment. (48) In separate concurrences, Justices Harlan and White eschewed reliance upon the Bill of Rights and instead concluded that the law "infringe[d] the Due Process Clause of the Fourteenth Amendment" by "violat[ing] basic values 'implicit in the concept of ordered liberty." (49)
Justices Black and Stewart each filed dissents and accused their colleagues of striking down a law simply because they found it personally offensive and unwise as policy, even though it did not violate any specific provision of the Constitution (which nowhere mentions a right of "privacy"). (50) Justice Black faulted the majority for acting as "a court of common law" rather than as a tribunal bound by a written Constitution. (51) Justice Black's charge resonates because the Justices issued six opinions, which would have been remarkable if they had actually been interpreting a Constitution drafted in reasonably clear English to both empower and limit governments.
Griswold is a classic example of the Warren Court's penchant for reaching a result deemed fair (and sensible to most Americans), then trying to find some constitutional justification for it. (52) Justice Douglas's "penumbral" reasoning was so transparently fictional that it generated widespread ridicule, (53) and Justice Goldberg's analysis similarly turned the Ninth Amendment on its head. (54) Not surprisingly, these constitutional rationales were swiftly abandoned. Nonetheless, the right to privacy endured, albeit as a substantive component of the Due Process Clause, and it has become virtually unassailable. (55) Moreover, Griswold's focus on refusing to "allow the police to search the sacred precincts of marital bedrooms" (56) quickly gave way to a notion of privacy as the freedom of any individual, married or single, to use contraception as part of "the decision whether to bear or beget a child." (57)
B. The Right to Abortion
1. Roev. Wade
This reformulation of the privacy right opened the door to Roe v. Wade, (58) which struck down a Texas law prohibiting abortion except when necessary to save the mother's life. (59) Justice Blackmun began his majority opinion by acknowledging that the abortion controversy had produced "vigorous opposing views" that reflected each side's different religious, philosophical, and moral views, but he assertedly sought "to resolve the issue by constitutional measurement, free of emotion and of predilection." (60) Justice Blackmun then proceeded to ignore traditional "constitutional measurements" (like text, history, and federalism) and instead to write an opinion that imposed his personal pro-choice predilection, as his recently released papers reveal. (61)
Initially, the Court traced the history of abortion and concluded that Anglo-American law generally had treated abortions before "the quickening" (the first fetal movement, which occurs around the fourth month of pregnancy) far more leniently than those performed after that point. (62) Justice Blackmun then crudely grafted a similar model onto the Constitution by holding that states must allow abortions until a fetus becomes viable (at the beginning of the seventh month). (63)
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. (64)
The Court deemed this right "fundamental," meaning that restrictions on it had to survive strict scrutiny (i.e., be narrowly tailored to achieve a compelling government interest). (65) Justice Blackmun rejected Texas's argument that it had such an interest in protecting all fetuses as constitutional "person[s]," (66) but declined to resolve "the difficult question of when life begins," which had bedeviled doctors, philosophers, and theologians for centuries. (67) Nonetheless, the Court recognized that the state's interest in safeguarding the "potential life" of the fetus did become compelling at the point of viability. (68)
Justice Blackmun concretely implemented the foregoing analysis by segmenting pregnancy into "trimesters." (69) During the first three months of pregnancy, the government could not prohibit abortions or regulate them except as it would any other medical procedure. (70) In the second trimester, the state could not ban abortion but could control it in ways "reasonably related" to maternal health. (71) Finally, in the last third of pregnancy, when the fetus had attained viability, the government could proscribe abortion "except where it is necessary, in appropriate medical judgment," to preserve the mother's life or health. (72)
In the companion case of Doe v. Bolton, (73) the Court applied Roe to strike down a Georgia law that had prohibited abortions unless (1) the pregnancy seriously endangered the mother's life or health, the fetus was irreparably "defective," or the pregnancy resulted from rape, and (2) the abortion was performed in an accredited hospital, preapproved by a committee, recommended by at least three physicians, and allowed only for state residents. (74)
Roe and Doe featured several concurring opinions presenting different perspectives on their holdings and implications, (75) as well as two dissents. In Roe, Justice Rehnquist dissented on the ground that the Constitution contained no right of "privacy" and that, in any event, the cases creating such a right had no applicability to an operation performed in a public medical facility. (76) He further argued that the Texas statute easily met the Court's established test for social regulations alleged to infringe Fourteenth Amendment "liberty" interests, as they were "rationally related" to the state's valid objective of protecting fetal life. (77) According to Justice Rehnquist, the majority avoided this conclusion by transplanting the "compelling state interest" standard from its equal protection cases into its due process analysis. (78) and he stressed the pitfalls of doing so:
As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. (79)
Indeed, that Amendment's framers and ratifiers obviously did not mean to include a right to abortion, as no one understood the Amendment to affect the thirty-six state laws that restricted or prohibited abortion in 1868 and long thereafter. (80) Thus, "the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (81)
Similarly, in Doe Justice White accused the majority of reading into the Constitution their personal judgment valuing a pregnant woman's convenience more than the life of a fetus:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus.., against a spectrum of possible impacts on the mother.... [The decision] is an improvident and extravagant exercise of the power of judicial review.... (82)
He urged the Court to leave such a sensitive and controversial issue to the political process. (83)
2. The Reaction to Roe
Roe unleashed a firestorm of criticism. Indeed, even many pro-choice scholars lamented the Court's poor legal reasoning. Most famously, John Hart Ely assailed Roe
[n]ot because it will perceptibly weaken the Court--it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's--it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be. (84)
Professor Ely argued that a right to abortion could not reasonably be inferred from the Constitution's language, drafting and ratification history, general values, or structure. (85) Both Ely and Richard Epstein contended that (1) the historical sources cited by the Court tended to support the personhood of fetuses, (86) and (2) in any event, the Constitution did not require the rights or life of another "person" to be implicated before a state could justifiably prohibit certain activities, even constitutionally protected ones. (87) Moreover, Professors Ely and Epstein noted that, even if one acknowledged a constitutional right of privacy in the home, this concept (and the cases recognizing it) had nothing to do with the medical procedure of abortion. (88) Echoing Justice Rehnquist and Professor Epstein, Ely concluded that Roe marked a regression to the Lochner era, in which the Court "simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures." (89)
Professor Epstein further maintained that states should not only be permitted to protect the unborn child but should be required to do so. (90) Likewise, John Noonan claimed that the majority had replaced the state's reasonable judgment that safeguarding the fetus was a compelling interest with the Justices' personal view of "the unborn as pure potentiality ... before viability" rather than actual human life. (91)
Finally, Ruth Bader Ginsburg contended that Roe should have been based not on due process but on equal protection, because laws banning or restricting abortion discriminate solely against women. (92) Other scholars have provided historical support for this claim. (93) Akhil Amar has emphasized that the abortion bans in Texas and other states were troublesome because they had been enacted at a time when women were denied basic political and legal rights:
[A]n equality approach would have noticed that ... the Court had before it a sex-based law predating women's suffrage, a law that restricted women's choices but had not earned women's votes. Rather than rushing to constitutionalize a trimester framework that may not be the most sensible solution for all time, a sounder--more democratic, less hubristic--approach would have identified the issue of women's equality and remanded abortion to a political process in which women's voices and votes would count equally. (94)
In short, with rare exceptions, (95) scholars from across the ideological spectrum have assailed Roe's legal analysis, and deservedly so. (96) Few major constitutional opinions have so thoroughly failed to justify their result. (97) Most obviously, Justice Blackmun cited nothing in the language, drafting and ratification history, or century-long understanding of the Due Process Clause that even hints at a right to abortion. (98) This silence, viewed in light of the idea of a written Constitution and the fundamental structural principle of federalism, means that abortion--like all medical procedures and controversial social issues not dealt with specifically in the Constitution--should have been left to state regulation. (99)
Moreover, Roe's only real proffered justification was to invoke modern privacy cases like Griswold, (100) which rest on equally shaky constitutional grounds and have unsavory antecedents like Lochner. But even assuming the validity of substantive due process precedent, the right to privacy has little evident relevance to abortion. The procedure is not performed at home and involves not only individual rights (of the mother) but also the competing claims of the fetus, which millions believe has a moral right to continued existence. Thus, even judged purely in common law terms, Roe does not plausibly explain how its holding logically flows from precedent or achieves a balanced social policy. (101)
Despite Roe's numerous and widely recognized flaws, the Court has consistently reaffirmed its core holding of a right to abortion. Later cases have simply worked out the details of this right.
3. Refining Roe
For two decades after Roe, the Court tended to show hostility to government attempts to regulate abortion. The major disputes involved three subjects.
First, the Court ruled that states could require standard informed consent, (102) but not the communication of graphic descriptions of the fetus and the risks of abortion designed to discourage women from choosing this option. (103) Similarly, a majority of Justices rejected laws mandating brief waiting periods (104) and the father's consent. (105) The Court did, however, uphold state requirements of parental notification (106) or consent for unmarried minors, (107) as long as such statutes provided for an alternative judicial hearing to determine if the minor was sufficiently mature to decide whether to have an abortion. (108)
Second, the Court allowed basic reporting and recordkeeping requirements for public health purposes. (109) Such data, however, had to be kept confidential to protect women's privacy. (110)
Third, the Justices generally invalidated states' attempts to regulate the medical profession. Examples included laws requiring abortions to be performed in accredited hospitals (111) or mandating the presence of a second physician (except for post-viability abortions, as long as there was an exception for medical emergencies). (112) Similarly, the Court struck down a state ban on the saline amniocentesis method of second-trimester abortion because the alternative procedures increased health risks. (113)
Of special relevance here, the Court initially invalidated state statutes requiring doctors to determine whether a fetus was viable--and, if so, to follow special procedures to maximize the chances that the fetus would survive--without any directive to safeguard the mother's health. (114) In 1989, however, Webster v. Reproductive Health Services (115) upheld a Missouri law that prohibited abortions after 20 weeks unless an evaluation showed that the fetus was not viable. (116) In a plurality opinion, Chief Justice Rehnquist, joined by Justices White and Kennedy, acknowledged that this statute would make abortions more costly and would restrict physicians' discretion, but concluded that it properly furthered the state's interest in protecting potential human life. (117) The plurality rejected Roe's trimester framework and declared that the state's compelling interest in safeguarding the fetus existed both before and after viability. (118) Justice Scalia concurred and suggested that the plurality's implicit overruling of Roe should be made explicit, as the Court had no proper constitutional role in adjudicating the political questions of state law raised by abortion. (119) Finally, Justice O'Connor concurred on the ground that the statute did not impose an "undue burden" on a woman's freedom of choice, (120) and she saw no reason to revisit Roe because the law did not prohibit abortion. (121)
4. Analyzing the Post-Roe Cases
Once again, it seems fruitless to examine Roe's progeny in light of traditional benchmarks such as fidelity to the Constitution's text, history, or structure. A Constitution that does not mention abortion obviously cannot resolve questions about the validity of, say, parental notification requirements. Rather, the Court's jurisprudence can most sensibly be judged according to common law standards.
Before Webster, the Court gradually had come to interpret Roe as creating something close to a right to abortion on demand. Such a result cannot be squared with Roe itself, which expressly denied it was doing any such thing and instead balanced a woman's rights against a state's interests in protecting fetal life and maternal health. (122) For instance, under Roe itself, a state should have been able to err on the side of caution in ensuring that abortions were never performed on viable fetuses.
Of course, common law evolves in light of changing perceptions of good social policy. To take one example, the Court's invalidation of laws requiring husbands to consent to abortions makes sense if one characterizes this decision as exclusively the province of a woman and her physician, but not if one views the father as having an independent interest in his future child. The evolutionary nature of common law, and the vague legal standards articulated in Roe, make it difficult to draw firm conclusions about whether any individual case was decided properly based on precedent and policy considerations.
Moreover, because judicial opinions about abortion reflect politics and ideology, the party of the nominating President can be quite influential. When the first President Bush took office in 1989 on a pro-life platform and later appointed David Souter and Clarence Thomas to replace Justices Brennan and Marshall, (123) it appeared that the two new Justices would join the original Roe dissenters (Chief Justice Rehnquist and Justice White) and its later critics (Justices O'Connor, Scalia, and Kennedy) to overrule Roe. The Bush Administration pressed for this outcome. (124)
5. Planned Parenthood v. Casey
In Planned Parenthood of Southeastern Pennsylvania v. Casey, (125) only Justices Blackmun and Stevens voted to retain Roe in its entirety. (126) Surprisingly, however, Justices O'Connor, Kennedy, and Souter authored an unusual joint opinion preserving Roe's "central holding" that (1) women had a right to choose abortion before fetal viability; (2) states could restrict or prohibit this procedure after viability, except where necessary "in appropriate medical judgment" because a pregnancy endangered a woman's life or health; and (3) states had legitimate interests...
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