From Orin Kerr:
As expected, Justice Kennedy wrote the opinion for the Court. Based on a quick skim, it looks like a very narrow opinion: the Court distinguished but did not overrule Stenberg v. Carhart, and upheld the federal statute under the Casey plurality “undue burden” test. The Court also left open the possibility of an as-applied challenge to the statute at a later date. The majority opinion was joined by Roberts, Scalia, Thomas, and Alito. Thomas wrote a short concurrence joined by Scalia. Ginsburg wrote the dissent joined by Stevens, Souter, and Breyer.
Notably, the court assumed rather than decided that the Casey “undue burden” test applied. Justice Kennedy noted that Thomas and Scalia had not agreed with that test, but reasoned that even under it the law would be upheld. Thomas’s very brief concurrence, joined by Scalia, states that he joins the majority because it’s faithful application of Casey  but that he would want to overrule the line of cases. He also notes that there was no Commerce Clause challenge brought to the law, and that it might face such a challenge later […]
Justice Ginsburg’s dissent is pretty heated, in some places almost Scalia-esque. She contends the majority’s opinion is “irrational,” and “cannot be understood as anything other than an effort to chip away” at abortion rights. She writes:
TodayÂ’’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womanÂ’s health.
Also interesting—at one point, Justice Ginsburg also accuses the majority of having a “way of thinking” that “reflects ancient notions about women’Â’s place in the family and under the Constitution——ideas that have long since been discredited.” (This accusation is followed by a “compare” string, comparing the rhetoric of Supreme Court opinions 100 years ago to language in one opinion Ginsburg wrote and another that she successfully argued.)
[my emphasis]
Libertarian / conservative legal response to this ruling will surely be split. For instance, Glenn Reynolds, in keeping with Thomas’ intimations in his opinion, believes the ban runs afoul of commerce clause restrictions—which, after Raich, is a more difficult case to make, but certainly one federalists will be making. Roberts—given his fidelity to stare decisis—would likely not buck Scalia, but Thomas might very well do so, which means that Thomas could eventually side with the abortion activists, though he’d be doing so on what I believe to be solid and appropriate legal grounds, and in the process correcting some rather egregious judicial errors. And it could be, given his concurrence, that Scalia himself is having second thoughts about the commerce clause.
Meanwhile, the National Review editors are calling this a “partial victory”:
Partial-birth abortions are not really worse than other methods of late-term abortion. There is indeed something irrational about concluding that a method of killing a seven-month-old fetus should depend on the location of his foot. But just who is responsible for making a fetish of location in the first place? It is the Supreme Court itself that has declared  with no support in the Constitution  that what distinguishes a fetus with no claim to legal protection from an infant with such a claim is whether it is in the womb. The child’s stage of development does not really matter in this jurisprudence: A premature baby has more legal protections than a full-term fetus. In an earlier abortion case, Justice Stevens himself has suggested that a “9-month-gestated, fully sentient fetus on the eve of birth†is not “a human being.â€Â
Legislators seeking to ban partial-birth abortion are, therefore, trying to work around the irrational policy the Supreme Court, with the blessing of these dissenters, has created. They are trying to mark an outer limit to that policy: If children within the womb are not going to be protected, then at least children partway outside it should be.
The liberal dissenters have not merely made a minor logical error here. Take their argument seriously for a moment. They claim that it is conceivable that in some cases, partial-birth abortion is the safest method of abortion, and therefore it has to be allowed. (And it has to be allowed whether or not the pregnancy itself threatens the mother’s health.) They further claim that it should make no difference to anyone where the child’s feet are positioned when he is aborted.
Let’s apply this argument to infanticide. It is conceivable that in some cases removing the child from the womb completely before killing it is the safest option. And surely it should make no difference to any rational person whether the infant was fully within the womb, partly inside it, or all the way out when his skull is crushed? Four justices on the Supreme Court have accepted all the premises for a constitutional right to infanticide. They lack only the nerve to take their reasoning to its logical conclusion.
And Mark Levin is convinced the ruling won’t stand for long:
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.”
The radical pro-abortion movement will mischaracterize this decision. They will claim it’s a huge setback for choice. Their purpose will be to mobilize their forces against any limits, no matter how reasonable or narrow. And the Democrat presidential candidates will issue scathing and misinformed (perhaps intentionally) statements about the supposedly right-wing Supreme Court. But, in truth, they have much to celebrate today. Anthony Kennedy has already signaled his true intentions. And I have no doubt the pro-abortion movement is already looking for its next case.
So, even as Rick Santorum celebrates (and believe me, on a personal level, I believe in restrictions on abortion, and I believe partial birth abortion is abominable, so I’m ethically bound to celebrate just a bit), the ruling seems to have left open the possibility for a future case to sway two of the conservative justices—one of whom has moved increasingly to the left, the other who would roll-back commerce clause overreach, ruling from the libertarian right.
The upshot of which means that until abortion becomes a state legislative issue, partial birth abortions will likely only be temporarily restricted. Thanks, in large part, to conservative justices. How’s that for irony?
Of course, I’m no lawyer, and I’m shooting from the hip here, so I invite you to offer your corrections to my rather quick interpretation of the decision—along with your own thoughts on the matter.
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update: Gretchen Sund at SCOTUS Blog has a roundup of media reaction. See also, Lyle Denniston and Marty Lederman.
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update 2: Allahpundit at Hotair writes:
By way of background, Kennedy co-wrote the famous plurality opinion in Planned Parenthood v. Casey in 1992 that reaffirmed Roe v. Wade. At the time the Court had seven Republican appointees, so it was widely expected that Roe would be overturned.
If the Chief Justice is in the majority, as Roberts was here, it falls to him to decide who’s responsible for writing the majority opinion. Kennedy probably got the call for two reasons: one, having an author of the Casey opinion put his name on today’s decision lends it a bit of extra authority, and two, since Kennedy is a fencesitter on this issue, Roberts wants to do what little he can to “lock him in†to anti-abortion precedent by making him as personally invested in it as possible.
Interesting opinion. Mark Levin, however, would likely dissent.
More, from Ace:
While Thomas and Scalia called for a reexamination of the entire issue, stating that abortion rights had no constitutional basis, Roberts and Alito did not join that concurrence. Which doesn’t mean they disagree, but it does seem to indicate they’re not enthusiastic about such a reexamination.
I noted above that I believe, at least in Roberts’ case (but also perhaps Alito’s) that the reluctance is due to fidelity to stare decisis and prior precedent—ironic, given that Scalia did his best to compel them into taking Raich as precedent.
Geez, Jeff–so defensive! Who ever called you a lawyer?
Just a bit of a side note. I suspect hardly anyone in the US knows (because hardly anyone in Canada knows it) that Canada has no laws limiting abortion at all. The legal issue of very late term abortion would not have even rise to the level of a discussion.
Here in Canada, the leftists actually have succeeded in eliminating any and all discussion about abortion, as [this] link discusses.
So, the next time you wonder why leftists want to restore the Fairness Doctrine and shut down Fox and shout down conservative voices, it’s because that tactic has worked.
Please note that Obama was upset about the ruling, so that makes the second time in one week in which I have come to reevaluate the dude unfavorably (make that three, his bizarre “violence” speech the other day was totally unsuited to a POTUS, although appropriate to a spokesman for NORML.)
Jeff, despite the fact that actus caused me to eat my IL ARDC card, I still have a law license…and I think your “shooting from the hip” is on target.
The nod, wink, nudge nudge, here-is-how-to get-around-this portions of the opinion couldn’t be more clear.
Not, as you mention, this will stop the fund raising screetching from Planned Parenthood (ha!), et al.
I think Thomas and Scalia were in a tricky spot here that forced them to hold their noses and vote for the lesser of two evils. To go to the mat and overturn on commerce grounds would have given the win to the side that said the partial birth procedure is a constitutional right.
Thomas might very well do so, which means that Thomas could eventually side with the abortion activists
Boy, wouldn’t those four be in a bit of a pickle! Uphold an all-powerful Commerce Clause or swallow a partial-birth abortion ban?
Actually, I don’t think there’s any contest; they’d go with the Commerce Clause. Implementing the progressive agenda requires it. So, sadly, I think Thomas might be on the federalism raft all by his lonesome.
Jeff, you’ve got it right. And don’t knock your lawyerin’ skills—the only difference between a lawyer and a non-lawyer is that the former probably has more familiarity with specific cases and statutes. Reading comprehension and basic logic are not our exclusive province.
I think Kennedy is more ambiguous than Levin suggests. Sure, he repeatedly mentions that an as-applied challenge might turn out differently, but an as-applied challenge is also extraordinarily unlikely. If you are a doctor, and the woman on the operating table starts to have complications, you can either perform an “intact D&E” which has now been banned, or you can use any of the three or four other methods of abortion which Kennedy specifically and repeatedly stated are not affected by the ban at all (hysterectomy, hysterotomy, D&E, and killing the baby before dilation). In that situation, do you choose the method that is constitutionally protected, or the method that might put you in jail for two years?
That said, another aspect of Kennedy’s opinion is that, as I said, he specifically and repeatedly emphasized all the other methods of abortion which are in no way affected by the ban. And even doctors who perform an intact D&E don’t violate the statute unless they meet all the elements of the statute—extraction to specific “anatomical landmarks,” an overt act designed to kill the child, and intent as to the extraction and the overt act.
Today’s decision is therefore very limited in effect. I just got an e-mail from the Susan B. Anthony Association which said the ruling will save babies—that’s just not true. The doctor can just abort the baby another way.
But it is a big deal in at least three ways. First, it represents an erosion of Roe, however small, and therefore may serve as precedent in future abortion cases. Second, states are now free to enact identical bills, which cannot be struck down on federalism grounds. And third, Levin is right to say that Planned Parenthood will use this to mobilize support.
“On Narrow Ground”…
I think Steve Segal just found the title of his next big action/adventure flick.
I doubt that Levin would dissent much from Allah’s take. Levin is looking more at the substance, whereas AP is addressing the internal politics of the Court. If books on the Court are any guide, it’s not uncommon in a 5-4 situation for the Chief to assign the case to the wobbler to ensure a majority. I haven’t read the opinion myself yet, so I’ll defer to others. I will say that Kennedy was certainly aware of why Roberts assigned him the opinion, and could account for what Levin (and Maj. John) are suggesting.
Since women have demanded that it’s all the woman’s choice, why then can’t she actually take responsibilty for her decision by not delaying doing the nasty long after the first trimester has ended.
To me this reflects just how intellectally and emotionally infantile is becoming of my gender.
I mean really ladies, (rape and incest aside) you know that having sex could possibly lead to pregnancy so if you’re not ready to be mommy why not get the abortion over before baby you are carrying has to have it’s brains sucked out or has to be dried up with a damn sea weed stick.
I’m tired of validating choice to those stuck on stupid.
Of course I had to make an ass of myself incorrectly spelling ‘intellectually’ but at least I immediately took responsibilty for my actions.
And again with ‘responsibility’
I do need to be far more responsible about previewing my mistakes.
Incidentally, given Jeff’s focus on language here at PW, it’s worth highlighting this from the SCOTUSblog link he provided:
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.
I’m sure he is, but there’s simply no situation, ever, in any circumstances which a partial birth abortion would be needed to save a mother’s life or even her health. Ever. That’s the biggest red herring in medical history.
In terms of federalism, this law by the legislature actually reduces the unconstitutional imposition by the federal government, so I don’t think it can be considered bad on those grounds. If there hadn’t been a decision by the supreme court in the first place that abortion must be legal nationwide then there wouldn’t be a need for this ban at the federal level.
I understand that, Christopher. But that’s the irony of legal conservatism at times.
Thomas at least would roll back the bad commerce clause rulings.
Christopher Taylor, exactly. The Court can’t plausibly argue that Congress isn’t allowed to clean up the Court’s mess, based on federalism concerns that only apply to two out of three branches of the federal government.
I’ve been looking for a Dem I could tolerate, not because I am one, but because I just assumed the GOP would lose in 2008, because of the 2 term situation, the war, and, now, because the media is portraying today’s Supreme Court decision as “back alley abortion” time.
Unfortunately, all the Dem candidates are putrid. Oh, what a world, what a world …..
Figured I’d add this is a positive step. I’m 100% against late term abortions, period. I’m not a fan of abortion in general and I think Roe’s legal precedent is flawed but its the law of the land, whether I like it or not.
It looks abortion and Iraq are going to be the two hot topics in 08, considering the extent to which the dem presidential candidates (and I kindly include John Edwards in that list) are putting on their sackcloth and ashes to protest the decision. Obama’s diatribe is perhaps the most dangerous for him – many black churches are pro-life as well as anti-gay marriage. Last election showed blacks are voting more and more for republican candidates.
Other than Hollywood, thats Obama’s base.
I think it’s way too early to predict what the campaign will be like a year from now. The news cycle used to take months to roll over, now it’s a matter of days. Stuff that clung to the American conscience and psyche for years sloughs off in months now, and candidates reverse themselves in less than six months with little notice or concern.
I do think we’ll see a concerted effort to get some more control over radio conglomerates and especially the fairness doctrine reinstated before next year, though. The Democrats absolutely rely on their media control for any hope of election.
Isn’t Casey the law of the land over Roe?
I mean really ladies, (rape and incest aside) you know that having sex could possibly lead to pregnancy
Do they actually teach THAT in SexEd anymore? Seems they’ve been focusing on pretty much everything BUT the fact that you could pregnant lately.
“…why then can’t she actually take responsibilty for her decision by not delaying doing the nasty long after the first trimester has ended.”
Ginsburg answered that question in footnote 3 of her dissent:
So there’s your appeal to emotion. This is where it gets much, much worse:
But what the hell, if eugenics isn’t a sound basis for constitutional law, I don’t know what is.
What about, oh, giving the kid up for adoption?
What disgusts me are the women who are in a relationship with the guy until about the 6.5 month mark, things go bad, and she decides to just get rid of the kid because he dumped her. You know this happens.
The worst case I can recall was some “indigent woman” in NYC who went to have an abortion late in the 3rd trimester, because she was so late, it was a 2 day procedure. It was one of those dismemberment operations. Well, after the first day, she was given the drugs, and they pulled off one arm, and then she got home, and decided to—get this—“keep the baby.” So the next day they delivered it. So she delivered a healthy baby girl who was missing an arm.
Sorry if I made you barf.
Fifty bucks she blamed the white man when her baby asked her why she has only one arm.
They were never overturning Roe in this case, whatever you boys dreamed of. But they’ve set it up. It’s a terrible blow to women’s rights. So celebrate. You womanhaters have had a fine blow struck for you with this one.
For those of you who support partial birth abortion:
Do you support infanticide of newborns?
If not, why not?
Because if you can’t drag a baby halfway out of the birth canal and cut it to pieces, women cannot be free. In fact, I hear that Brad and Angelina aren’t getting married until everyone can dismember their half born children.
Remember, abortion liberates women! Uphold women’s rights!
The partial-birth part–leaving the head inside for… well, for the rest of ‘the procedure’–is really a pretty tiny figleaf, isn’t it?
I’m frankly amazed they bother with it.
The bus stop by my high school was on the other side of a busy highway. People talked about putting in a stoplight to make it safer, but nothing was actually done until two students were killed while dashing across the highway.
I get the feeling that that’s what it’s going to take for the ban to be lifted: for the family of a woman who died because of a risky termination procedure to sue the government.
Zen, Susanna —
While I think the decision legally open to being overturned—by two conservative justices, no less—I was also under the impression that, leaving the legal technicalities aside, there is never a need for this particular procedure, medically-speaking, but even so, health protections are built into the legislation.
Where am I going wrong?
I would like the answer to that question also. I frequently hear “except when the life of the mother is at risk” used with regard to banning this procedure, and frankly I can’t imagine when that would be the case. That this would be the only or best option for saving the life of the mother. Can someone explain that or at least provide a link to some unbiased medical sites?
Also, Dr Zen: why is it not possible to be concerned about the rights, health and humanity of a full-term fetus without hating women? Is the converse also true? Does being concerned about the rights, health and humanity of the mother mean that you must hate the fetus? Are you a fetus hater?
Jeff, Ginsburg’s dissent persuasively argues that in some cases it is the best option, if not the only option. Congress tried to do an end-run around Stenberg v. Carhart‘s requirement that the ban include an exception for the health of the woman by including a finding that it is never medically necessary. But the Senate hearings on that point were, at best, inconclusive in favor of such a determination.
Same thing with the district courts in this challenge. The plaintiffs brought in a lot of doctors to testify that it was sometimes medically necessary, or the best option.
Kennedy’s majority doesn’t really refute this. He expressly notes that Congress’ findings are objectively incorrect on at least two points (that no medical school teaches intact D&E, and that there is a consensus of no medical necessity), and then says deference to Congress is inappropriate in this case. He upheld the statute by claiming that abortion doctors are no more privileged from regulation than any other kind of doctor, and that Congress can limit this one procedure because there is no likelihood that a significant number of women will find it medically necessary to preserve health (and again, the ban doesn’t apply when the intact D&E is necessary to preserve the woman’s life).
“Can someone explain that or at least provide a link to some unbiased medical sites?”
This is neither a link, nor unbiased, nor medical, but Ginsburg noted testimony from abortion doctors who said intact D&E is sometimes the best option for women with certain medical conditions.
1. It may be preferable over a D&E (in which the limbs are torn off one by one) because you have to repeatedly insert the foreceps through the cervix, and each pass carries some likelihood of puncturing the cervix or uterus. In an intact D&E, there is only one pass, when the scissors are inserted. Also, with intact D&E there is less chance of leaving tissue in the uterus, which can cause complications.
2. It may be preferable over injections (basically inserting saline into the amniotic fluid, the cord, the placenta or directly into the baby) to essentially burn the baby to death, because the chemicals might harm the woman in some circumstances.
3. It may be preferable over hysterotomy (essentially a C-section) or hysterectomy (removing the uterus entirely) for women who do not heal well, or who are too weak to survive major surgery. And both a C-section and a hysterotomy are major surgeries.
That is all information I got from Ginsburg’s dissent, and not from independent research. I’m not a doctor, so I won’t vouch for the accuracy of any of it. But there you go.
So basically, it is an instance where the mother is in such poor health that any type of childbirth may kill her? And we are thus choosing the mother over the child? And I do not mean to imply any value judgements here, just trying to establish the facts. I need to know what we are talking about before I figure out what I believe.
The truth is, congress heard many experts, some of which said in their opinion a D&X procedure is the most safe and some who said that’s nonsense. So as usual, lawmakers had to make a decision based on conflicting expert opinion, and the Supreme Court simply noted it wasn’t unconstitutional.
There’s never, ever going to be a situation when a woman must have a partial birth abortion or she will die. Never. No expert testified to this effect, none of them hinted at it. Some merely thought that the procedure might be safer in some instances than others.
BMoe said, “So basically, it is an instance where the mother is in such poor health that any type of childbirth may kill her?”
I don’t know, because what I read in the case was never framed that way. It was, assuming you want or need an abortion (regardless of whether the woman could survive childbirth), are some of the methods more dangerous than others?
“And we are thus choosing the mother over the child?”
Yes and I don’t know. The law clearly states that the woman has rights, and the fetus does not. But I don’t know if we’re talking about a situation where one of the two must die so the legislature chooses which—I think we’re talking more about any situation where a woman wants or needs an abortion, regardless of whether the child is viable and could survive emergency procedures.
Christopher Taylor said: “There’s never, ever going to be a situation when a woman must have a partial birth abortion or she will die.”
Not that it would matter, because the law has no effect on that situation anyway. The question is about health, and whether intact D&E is ever necessary for that. Ginsburg says it sometimes is. Whether she’s right or wrong, Kennedy does not say.
Right, this particular decision isn’t about that, I just want to repeat that to make it absolutely clear because inevitably someone will claim that PBA are needed or women will die.
The Partial Birth Abortion ban actually gives permission to use this procedure if the mother will otherwise die in any case.
Incidentally, if you’re confused about the details of intact D&E, don’t worry. So is the president of NOW.
(Or, more likely, she was simply lying because she doesn’t want to have to explain just how nauseatingly gruesome the procedure is).
That is what I was trying to figure out, if the “health of the mother” is seriously threatened by any type of delivery, then I can see this as perhaps an option to the family. Otherwise I don’t see how you can morally and ethically justify abortions this late.
Keep in mind “health” is a very elastic concept.
The question is about health, and whether intact D&E is ever necessary for that. Ginsburg says it sometimes is. Whether she’s right or wrong, Kennedy does not say.
Further proving that the Supreme Court should stick with interpreting the law and leaving policy alone.
Which… is what they did. They found nothing in the law that violated the constitution.