Civil Liberties

Supreme Court Upholds Late Abortion Ban: Right-Wing Judicial Activism Run Amok

Bush’s court-packing pays off, and Democrats who voted for Scalia and Roberts get their comeuppance.
Last year, in defending his decision to vote for the confirmation of Samuel Alito to the Supreme Court, Senator Bill Nelson (D-NE) said that it was based, in part, on Alito's "pledge that he would not bring a political agenda to the court."

Today, Nelson and the 18 other Democratic Senators who voted against the attempted filibuster of Alito reaped what they sowed. The new court -- the first in American history made up of a majority of conservative Catholics -- upheld the 2003 ban on so-called "partial birth" abortions, a made-up term that's become a hot-button issue for social conservatives, but is largely based on junk science and flies in the face of medical "best practices." It will go down as a text-book case of right-wing judicial activism, with the justices essentially overruling the medical community.

In upholding the ban, the Supreme Court overturned a critical legal principle that's guided courts for almost two decades: that any restriction on abortion must have an exception for the life and health of the pregnant woman.

That principle was the key to the landmark decision, Stenberg v. Carhart, which overturned a similar ban in Nebraska. Stenberg, while split five to four, was not a wishy-washy decision. The majority found that Nebraska's law violated the constitution as interpreted in both Roe v. Wade and the 1992 case, Planned Parenthood v. Casey.

The Supremes made two important findings in that case. First, the Nebraska ban didn't have an exception for cases when the health of the mother might be threatened. Second, the court found that the ban on "partial-birth abortions" (a term coined by abortion foes that appears nowhere in the medical literature) was too vague and, as such, placed too great a burden on a woman's right to determine her own care.

It's worth noting that Alito cited Carhart in 2000, when, as a member of the Third District Court of Appeals, he voted to strike down New Jersey's ban on late-term abortions. "The New Jersey statute," he wrote, "like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New Jersey statute is irreconcilable with [Stenberg]. What's more, Alito supported the court's finding that "the Nebraska [ban] applied, not only to the "dilation and extraction" or D & X procedure, but also to the more commonly used D & E procedure." In other words, Alito agreed that the ban could apply to all sorts of otherwise legal abortion procedures.

At the time, many in the forced childbirth movement argued that Alito's decision in the New Jersey case proved that he would not be reliably anti-choice. But as today's ruling shows, he didn't hesitate to overturn Stenberg when he got the chance.

(I should note that Alito and Chief Justice Roberts both declined to join a concurring opinion by Scalia and Thomas that would have overturned Roe v. Wade.)

What's remarkable about the bill upheld by the Supremes today is that about 50 percent of the text is devoted to explaining why Congress is justified in ignoring the court's findings in Stenberg.. The essence of the argument is that Congress has different standards of evidence and needn't consider the same data that the courts looked at. The argument was supported with case law from challenges to the Voting Rights Act and a telecommunications law, neither of which were questions of scientific fact. In overturning Stenberg, the court effectively affirmed the idea -- long popular among the Christian-right -- that the judiciary in general should and can be 'restrained' by legislative bodies.

The text of the law argues that "the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman." It goes on to say, "A prominent medical association has concluded that partial-birth abortion is 'not an accepted medical practice.'" (Physicians who testified before Congress included members of the Christian Medical and Dental Associations.) The American Medical Association and the American College of Obstetricians and Gynecologists, while differing slightly in their positions, both opposed the ban as it was written.

To claim that there is anything approaching medical consensus on whether the banned procedure can have a positive effect on maternal outcomes is pure hokum. As the ban's supporters are quick to argue, there have been no controlled studies comparing different abortion procedures, an argument that cuts both ways.

It's undeniable that there are well-credentialed physicians who hold that dilation and extraction procedures (or D and X -- the procedure that the laws are supposed to regulate) in some cases are a safer form of abortion than the available alternatives.

Judge Richard Casey, who presided over an earlier challenge to the federal law, agreed. Leading up to the trial, Casey was considered by anti-choice activists to be the best hope to support the ban. He opined that the procedure was "gruesome, brutal, barbaric and uncivilized," and subjected the fetus to "severe pain." According to The New York Times, Casey dismissed the testimony of A.C.L.U. witnesses as being less than credible. Nonetheless, he wrote that Congress had enacted the law "without seriously examining the medical" issues. "This court heard more evidence during its trial than Congress heard over the span of eight years," Casey wrote. He held that lawmakers had "ignored furious dissension among doctors over the safety and necessity" of the abortion method. The lawmakers had overlooked testimony in their own hearings, he said, according to the Times.

What's more, it's impossible to imagine that a scientific consensus could be achieved given Stenberg's other significant finding: that the definition of "partial-birth abortion" was unduly vague.

Testifying in the Nebraska challenge to the federal ban, Dr. Leroy Carhart (of the original Stenberg v. Carhart case) said that as the federal ban was written, "There are at least 21 different procedures that it covers." He added: "There are terms in this act that I do not understand... and that have many definitions." According to Omaha's NBC affiliate, Carhart said that the act could affect common abortions performed "as early as 12 weeks into the pregnancy."

The vagueness is intentional; the most likely result of today's ruling will be a whole new push to overturn Roe. As Hadley Arkes, a scholar at Amherst, Wrote of the possibility of Carhart being overturned, "the regime of Roe will have come to its end, even if Roe itself is not explicitly overruled. What the Court would be saying in effect is, 'We are now in business to consider seriously, and to sustain, many plausible measures that impose real restrictions on abortion.'"

Let me stress a point an important point: if the goal of these laws were primarily to halt a practice the religious right considers "baby-killing," they could have achieved that years ago. Senator Barbara Boxer (D-California), one of the more liberal Senators, even offered a common sense amendment to the federal that would have excepted those abortions performed "where, in the medical judgment of the attending physician, the abortion is necessary to preserve the life of the woman or avert serious adverse health consequences to the woman." If that kind measure had been included in the law upheld by the Supremes today, there would be little controversy. As it stands, there is sure to be series of high-profile fights over abortion that will stretch on for years to come, just as there has been for the past three decades.

Perhaps that's the whole idea.
Joshua Holland is an AlterNet staff writer.