[Orin Kerr, April 18, 2007 at 11:53am] Trackbacks
Was the Abortion Decision Narrow or Broad?:
It's interesting to see how different commentators are reacting to Gonzales v. Carhart. When I skimmed over the opinion, it struck me as pretty much the narrowest ground to uphold the ban; it applied Casey, did not overrule the recent Stenberg decision and did not foreclose a later as-appled challenge. Other commentators are calling the ruling "sweeping," though. For example, over at SCOTUSblog, Lyle Denniston offers this charactization:
Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents.
  It's interesting that Lyle and I would have such different reactions about the scope of the opinion. Of course, a great deal of that may be the difficulty of trying to skim 70 pages of legal writing in 20 minutes so you can offer some instant commentary; often it's hard to tell the scope and significance of a complex legal opinion without reflecting on it for a few hours. Which I guess means that I should read over the opinion again . . .

  UPDATE: The comment thread quickly turned into a heated debate over abortion, so I closed up the thread and deleted those comments. Instead I'll open up a thread on abortion generally so readers can debate that elsewhere.
Steve:
Well, I do think it's a tad disingenuous for the Court to pretend like it's simply following precedent, considering that would mean that a full half-dozen lower courts all bungled their interpretations of the precedent.

As to whether it's a narrow ground, what would be a broad ground? A holding that there's no Constitutionally protected right to an abortion? Certainly it wasn't that broad, but an awful lot of the arguments set forth in the majority opinion seem like they could easily be applied in other abortion-related cases. Maybe it depends on what your definition of "narrow" is, but this case doesn't fit my definition.

The decision also strikes me as a classic example of Court politics; Kennedy, being the swing vote, got assigned the opinion in order to keep him solidly in the majority, and for his part, Kennedy did his best to remind the world that he still holds the keys to the abortion issue.
4.18.2007 1:00pm
L.R.:
Why can't it be both narrow and sweeping? Narrow in that it applies the Court's post-Roe abortion and deference standards--sweeping in that if this statute is constitutional, it's quite possible that many anti-abortion laws that would have been unconstitutional by the Roe majority are also constitutional.
4.18.2007 1:05pm
SR (mail):
The majority opinion appears to be a bland and uncontroversial application of precedent, but it clearly was not. First, it sub silencio overruled Stenberg's requirement that there be a health exception to any law that restricts the availability of abortion. Second, and probably what sparks commentators to claim that the opinion is extremely broad, Kennedy appears to apply rational basis review to uphold the statute against a challenge that it creates an undue burden by endangering the health of a significant class of women facing second trimester abortions. See Maj. Op. at 36-37. Finally, as Ginsburg points out in her dissent, the opinion is peppered with anti-abortion language (such as calling ob/gyn's who perform abortions "abortion doctors") and fails to reaffirm Casey or even apply it correctly. Which is a troubling development for the future of abortion rights.
4.18.2007 1:08pm
Cityduck (mail):
Well it was very narrown on the Commerce Clause issue. Although the issue was raised in some Amicus briefs, and brought up by Ginsburg at oral argument, it was not considered by the Court.
4.18.2007 1:25pm
JLR (mail):
I'm not sure how Gonzales v. Carhart does "not overrule the recent Stenberg decision," at least in part. Justice Kennedy's majority opinion certainly does not claim to overrule Stenberg. But substantively, it certainly overrules Stenberg at least in regards to the necessity of a health exception.

Justice Breyer wrote in Stenberg that
The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception.
Justice Kennedy, speaking for the majority in Gonzales v. Carhart, finds that
The question becomes whether the Act can stand when this medical uncertainty persists. The Court’s precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. ... see also Stenberg, supra, at 969–972 (Kennedy, J., dissenting); Marshall v. United States, 414 U. S. 417, 427 (1974) (“When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad”).
As Justice Kennedy wrote in his Stenberg dissent,
Instead, courts must exercise caution (rather than require deference to the physician’s treatment decision) when medical uncertainty is present. Ibid. ("[W]hen a legislature 'undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation'") (quoting Jones v. United States, 463 U.S. 354, 370 (1983))
As a matter of substance, when it comes to the matter of the health exception, it certainly reads as if Justice Kennedy is overruling the majority opinion in Stenberg and replacing it with pretty much the same reasoning he used in his Stenberg dissent.
4.18.2007 1:31pm