Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Gonzales v. Carhart is one of those rare cases that highlights the difference an election can make to Supreme Court decision-making. While the Justices of the Supreme Court are (arguably) largely immune from political pressure because they serve for life, they are nominated by Presidents and confirmed by Senates that answer to the People. For this reason, the makeup of the Court is unavoidably a product of the political process, and this process can yield strikingly different results depending on the makeup of the bench.

Gonzales presented to the Supreme Court for a second time the question of the constitutionality of statutory prohibitions on “partial-birth abortion.” A partial-birth abortion is a late-gestation abortion procedure by which a physician partially delivers an intact, living infant up to the head (in the case of a breech presentation) or up to the waist (in the case of a head-first presentation) and then kills the nearly-born infant by puncturing its skull and vacuuming out its brain. The Court had considered a Nebraska state ban on the procedure seven years earlier in Stenberg v. Carhart (involving the same late-term abortion provider, Leroy Carhart), and the decision yielded a contentiously split 5-4 decision that upheld the right of abortion providers to offer it. Although such bans had been adopted by thirty States and twice passed by both Houses of Congress (though vetoed both times by the President), the Court struck down the Nebraska law. The majority ruled that because the description of the procedure in the Nebraska law hewed too closely to descriptions of another abortion procedure that was not being challenged, the law thereby put legal access to abortion at risk. Justice Sandra Day O’Connor, writing a separate opinion concurring in the result, said that the state law may have been constitutional if it had included a “health of the mother” exception.

Justice Anthony Kennedy strenuously dissented, describing the partial birth abortion procedure in gruesome detail and calling the majority’s description of the method “clinically cold.” Rather than viewing the procedures from the perspective of the abortionist, Justice Kennedy said, it should have viewed them “from the perspective of a society shocked when confronted with a new method of ending human life.”

Congress responded to Stenberg by passing the Partial-Birth Abortion Ban Act of 2003, which prohibited the practice throughout the country and sought to shore up the deficiencies the Supreme Court found in the Nebraska statute through an extensive set of factual findings. Congress found that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited” and that “[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.” Lower courts struck down the act, and appeals courts agreed that it was unconstitutional under Stenberg.

But the Court’s makeup had changed in the seven years since Stenberg. Chief Justice John Roberts had been appointed by Republican President George W. Bush to replace Chief Justice William Rehnquist, one conservative jurist for another. While that switch likely made no difference to the outcome, the departure of moderate Justice Sandra Day O’Connor and President Bush’s appointment of conservative Samuel Alito altered the balance of the Court toward the pro-life position. This time, the Court upheld the partial-birth abortion ban, with Justice Anthony Kennedy now writing for the 5-4 majority.

The majority declined to reverse the Stenberg decision, preferring instead to distinguish it on the basis of the more exact language used by Congress to describe the banned procedure. Justice Kennedy began by repeating his gruesome description of the partial-birth abortion procedure set out in his dissent in Stenberg. Finding the description of the banned procedure sufficiently clear to encompass the prohibited partial-birth abortion procedure without also reaching the more common type of abortion procedure, Kennedy rejected the argument that the federal statute was too vague to be constitutional. In the Court’s view, the federal act furthered the government’s interest in preserving and promoting respect for human life, as Congress could reasonably conclude that “the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.” “Whether to have an abortion requires a difficult and painful moral decision,” Justice Kennedy said. Because “some women come to regret their choice to abort the life they once created and sustained,” the state has an interest in ensuring that such a choice is made with full information. And while the new Supreme Court majority said it assumed that the federal law would be unconstitutional “if it subjected women to significant health risks,” there was “documented medical disagreement” on this question. This “medical uncertainty” allowed the act to survive Carhart’s facial attack, the Court concluded, although in appropriate individual circumstances abortion providers were free to file “as-applied” challenges to the statute to show that the procedure was necessary in specific circumstances.

Notably, in the ten years since Gonzales, neither Dr. Carhart nor any other abortion provider in the U.S. has taken the Court up on its offer to file an as-applied suit to challenge the federal partial-birth abortion ban in circumstances specific to a patient. Partial-birth abortion remains a banned procedure under federal law in all fifty states. And Gonzales v. Carhart stands as a reminder that when it comes to Supreme Court jurisprudence, elections can and do make a difference. It remains to be seen whether President Donald J. Trump’s election in November 2016, and his appointment of conservative judge Neil Gorsuch to the Supreme Court to replace the late Antonin Scalia, will set the Court in a new direction.

Gonzales v. Carhart (2007) Supreme Court decision:

Steven H. Aden has more than twenty-five years of experience defending constitutionally protected freedoms. He serves as senior counsel with Alliance Defending Freedom in its Washington, D.C., office.

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