Federalist Society Online Debate on the Partial Birth Abortion case:
As part of its new on-line debate series, the Federalist Society is posting a debate on Gonzales v. Carhart upholding the constitutionality of the federal Partial Birth Abortion Act. The debate is principally between Professors Doug Kmiec and Erwin Chemerinsky, but I added my 2 cents. Others such as John Chapman will be commenting later. You can read the entire debate and post your comments here. Here is my response to the initial postings of Kmiec and Chemerinsky:
Both of my friends, Doug Kmiec and Erwin Chemerinsky are partially correct. Doug is right that Gonzales v. Carhart does not directly threaten a women's right to choose to have an abortion. Irwin is right that Carhart does change current law — in particular, the important holding of Stenberg v. Carhart — and, in my view, for the worse.

First, as to the right to have an abortion, because other procedures remain protected, abortions will still be legally available. This procedure was banned because, as popularly described, it seems a lot like infanticide. While pro-life proponents claim all abortions are indistinguishable from infanticide, pro-choice advocates must draw a line between one and the other. Viability — the stage at which a fetus can live outside the womb independently of the mother — provides a useful line because it gives women considerable time to decide whether or not to bear a child. After viability, the only compelling reason for an abortion of any kind is to protect the life or health of the mother, rather than because of family planning.

If "partial birth abortion" consists of the partial delivery of a viable fetus before killing, it certainly looks a lot like infanticide, which is why the federal ban was popular enough to pass. A law banning only this would not be problematic, but merely draw a line between abortion and infanticide in a somewhat different place than is now drawn.

But this statute goes further in two ways: first, it bans the use of this procedure throughout pregnancy, even before viability. Second, it makes no exception to protect the health of the mother. The fact that the procedure is banned before viability means the procedure is not akin to infanticide, unless one believes that all abortion is infanticide, which the Court currently denies. By the same token, the fact that no exception to the ban is made to preserve the health of the mother is evidence that this is about more than preventing infanticide. After all, the very same act is allowed under the statute if necessary in the opinion of a physician to protect the life of the mother, in which case the act itself does not constitute infanticide. So, even though the case does not strike at the heart of the judicial protection of abortion, pro-choice advocates are right to be concerned.

Regrettably, by defining the "health" of the mother so broadly, pro-choice advocates brought this problem on themselves. If a health exception applies, for example, to the emotional health of the mother, then it is the exception that will always swallow the rule, as opponents of partial birth abortion rightly complain. Had the Partial Birth Abortion Act contained a narrowly defined exception for the physical health of the mother, even many pro-choice advocates might have supported it.

What is most unfortunate is how Carhart weakened the constitutional rights of all patients. To reach its result, the Court had to eviscerate the approach it had adopted in 2000, over Justice Kennedy's strident dissent, in the case of Stenberg v. Carhart. (So much for stare decisis!) Put simply, in Stenberg, the Court held that, if there was substantial disagreement among medical authorities over whether a medical procedure such as this one was necessary to preserve the health of the mother, then a woman and her physician could make the choice. In Carhart, however, Justice Kennedy adopted a rational basis standard to uphold the judgment of Congress that such a procedure was never necessary to protect the health of the mother. This means that, contrary to Stenberg, whenever there is a substantial disagreement among medical authorities, Congress gets to make the decision. After all, however it decides it will be supported by some substantial body of medical opinion.

But why should this be? Putting abortion to one side, why should not a patient and her doctor have the liberty to decide on a course of medical treatment so long as their judgment is supported by a substantial body of medical opinion? In other words, when it comes to preserving one's life and health, why should not individual choice, as opposed to Congressional choice, be protected when supported by a rational basis?

The overlooked tragedy of Carhart is that the rights of all patients to preserve their lives and health were seriously weakened by the overreaching of both sides of the abortion debate: by abortion supporters who interpreted a health exception as completely open-ended and by abortion opponents who pushed for a ban that applied before viability and that did not include a narrowly drafted exception for the physical health of the mother. In Carhart, the sick and dying are another collateral damage of the abortion wars. And so too, for that matter, was the enumerated powers scheme of Article I, but since the Court did not address that issue, neither will I.