New York Times, April 27, 2007
By DOROTHY SAMUELS
One of the sage pieces of advice a colleague imparted when I first started writing about legal issues was not to put much predictive stock in Supreme Court oral arguments. The comments by individual justices sometimes reflect where they are heading, but often do not.
I was reminded of that advice by last weeks 5-to-4 ruling in the federal abortion ban case.
When the case was argued in November, I was encouraged by Justice Anthony Kennedys questions. They suggested he had genuine concerns about the medical risk to women in certain situations should the court go along with Congresss move to criminalize the intact dilation and extraction method of abortion the procedure critics call partial birth without providing a health exception. I took it as a sign that he was having qualms about approving the statute, notwithstanding the angry dissenting opinion he filed in 2000, when the court invalidated a strikingly similar Nebraska statute.
That, we now know, was a misreading. The passage of seven years has done nothing to lessen Justice Kennedys conviction that the court erred in the Nebraska case. The new ruling strains to draw distinctions between the invalidated Nebraska ban and the 2003 Congressional version in an obvious effort to play down the courts flight from recent precedent and make the decision seem less political.
The sharply different outcome this time reflects the courts changed composition. It was all but ordained when the Senate confirmed an avid opponent of womens reproductive rights, Samuel Alito, to replace Justice Sandra Day OConnor.
There were a few surprises in the new decision, which was written by Justice Kennedy and joined by Justice Alito and three other justices on the courts right flank: Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia.
The biggest surprise a shocker, really was the majoritys use of the opinion to enshrine into Supreme Court doctrine the rhetoric and tactical positioning of the anti-abortion movement. Most notably, it served up the patronizing fiction that the court was acting for womens own good to protect their mental and moral health.
Like some other provocative aspects of the majority opinion, the insulting rationale that criminalizing a medical procedure would protect women appears nowhere in Justice Kennedys dissent in the 2000 case.
To the extent that the new decision goes well beyond Justice Kennedys earlier take in challenging the wider legal framework supporting a womans right to choose, its easy to detect the fingerprints of Justice Alito and the courts other newcomer, Chief Justice Roberts. He is a committed abortion rights opponent going back to his days plotting to incrementally dismantle Roe v. Wade as a member of Ronald Reagans legal team.
When I read the new decision for the first time, its outmoded attitude toward womens autonomy had a familiar ring, but it took me a day or so to figure out why. Then I recalled concerns raised during Justice Alitos confirmation hearing regarding his opinion as a lower federal appellate judge supporting the constitutionality of a Pennsylvania law requiring that women inform their husbands before obtaining an abortion.
When that restriction reached the Supreme Court in the Casey case, Justice OConnor went out of her way to castigate his patronizing stance, firmly rejecting his assertion that the notification requirement posed no undue burden on abortion rights because it would hurt just a small number of women who would be afraid to tell their husbands for fear of violence.
The pertinent issue, Justice OConnor said, is not the number of women who may be harmed by an abortion restriction, but the impact on each individual. Yet with no reference to this history, we have Judge Alitos discredited undue-burden test revived in Justice Kennedys opinion, prompting Justice Ruth Bader Ginsburg to echo Justice OConnors objections.
Indeed, a bizarre aspect of the new ruling is the way it casually reverses, misstates or wholly ignores major precedents and doctrines mostly without acknowledging it. I guess this is what Chief Justice Roberts means by judicial modesty.
Just a year ago, the court followed its practice and voted unanimously to allow a facial challenge to a New Hampshire abortion restriction. That meant it could go forward despite arguments that the plaintiffs should be made to wait for an actual health emergency to test the adequacy of the challenged provisions. Now, with no mention of the New Hampshire case, the new opinion by Justice Kennedy appears to foreclose such facial attacks in the abortion sphere. That could make it much harder to legally challenge unconstitutional restrictions.
Another galling feature of the decision is its use of junk science. Its dismissive treatment of the overwhelming medical evidence supporting the need for a health exception to avoid harm to women, and the undue credence given to the flimsy assertions on the other side, disregard the courts own rules for evaluating expert testimony, as Linda Greenhouse, this newspapers Supreme Court reporter, has noted.
The ruling leaves behind a lot of legal murkiness. Murkiness is preferable to an overt overruling of case law protecting womens rights and well-being. It leaves some hope that future rulings will limit last weeks damage to the wrenching circumstances of a single targeted abortion procedure. But, then, I was hopeful that the court would strike down the reckless Congressional ban.
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