a wobbly first step

By Diogenes ( articles ) | Apr 19, 2007

I'd like to be able to rejoice more whole-heartedly in yesterday's Supreme Court decision in Gonzalez v Carhart. But the argument of NROs' Mark Levin strikes me as uncomfortably plausible.

I don't understand what all the fuss is about. The fact is that Anthony Kennedy makes clear that he is open to a case where the litigant asserts a health exception to partial-birth abortion. He makes this clear in several ways, including distinguishing between a "facial" vs. "as-applied" challenge, and all but invites such a challenge. That is, he is soliciting a health-exception challenge. Kennedy also telegraphs how he'll vote -- with the other four activists. In short, he says the federal statute, which excepts partial-birth abortion in cases that threaten the life of the mother (thereby narrowing the health exception), is consistent with past court rulings, but he is prepared to reverse course in a future case involving non-life threatening health exceptions. Maybe today's decision will temporarily chill doctors from performing partial-birth abortions. But the emphasis here is on word "temporary."

Justice Ginsburg hits at the same point in her dissent (page 70 of this PDF doc):

If there is anything at all redemptive to be said of today's opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. "The Act is open," the Court states, "to a proper as-applied challenge in a discrete case."... The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that "in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used."

To what degree is the impact of the decision jurisprudential, and to what degree is it political? As Rob Vischer notes at the Mirror of Justice blog, Justice Anthony Kennedy gives us a lot of his characteristic mushiness in the majority opinion he wrote. It's wryly amusing when he's writing for the wrong side, disconcerting when he comes bearing gifts (see also philosopher John O'Callaghan's comments here). To this amateur, it's impossible to guess the extent to which the rhetorical fluff will affect the future conduct of courts, but we all might wish there were more steel in Kennedy's moral reasoning.

That said, no one can deny that the howls of outrage we hear are coming from the right places. The editors of the New York Times are hyperventilating on schedule, and NARAL and NOW are in full fundraising mode. The decision has forced the presidential candidates to flip the abortion card face-up before they wanted to do so: they have to take a stance without knowing how it'll poll later on in a two-man race, etc. Moreover, it's reassuring to see that the rhetoric of those who oppose the decision is still the hard-core cant of 1970s feminism, which not only sounds dated to the fashion-conscious, but will make it hard for those forced to use it today to portray themselves as family-friendly moderates in the summer of 2008. Candidates don't photograph well with blood on their canine teeth, and plugging partial birth abortion makes it tough to smile before the cameras in any other condition.