In a sense, the outcome of
Gonzales v. Carhart is not a surprise, if one applies a very simplistic analysis. Such a simplistic analysis would go like this: Justices Scalia and Thomas would always vote to restrict abortion rights, regardless of the facts, the precedents or the statutory language. So would Justices Roberts and Alito, because that is precisely why little Bush named them to the Court in the first place.
And as for Justice Kennedy, he was a dissenting voice in
Stenberg v. Carhart, which the Act in issue was created to address. In
Stenberg, which dealt with a Nebraska statute, Justice Kennedy wrote:
The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.
...
The State's brief describes its interests as including concern for the life of the unborn and "for the partially-born," in preserving the integrity of the medical profession, and in "erecting a barrier to infanticide." ... A review of Casey demonstrates the legitimacy of these policies. The Court should say so.
...
States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.
...
A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.
...
Nebraska was entitled to find the existence of a consequential moral difference between the procedures [D&X and D&E].
...
Substantial evidence supports Nebraska's conclusion that its law denies no woman a safe abortion.
If these remarks sound familiar, it is because Justice Kennedy sounded similar themes in both
Stenberg and
Gonzales v. Carhart: a governmental interest in fetal life, a governmental interest in regulating physicians, a governmental interest in morals. These are things that the anti-abortionists have had wet dreams about, and now they are part of a majority Supreme Court opinion.
What had changed since
Stenberg? Was the federal statute really drafted better, so as to avoid constitutional difficulty? That's a difficult argument to support. The Congressional shenanigans designed to get around
Stenberg were exposed by the lower courts and were acknowledged even by the
Gonzales v. Carhart majority. The Congressional action designed to avoid constitutional infirmity was arguably a sham.
What has changed is the Court's personnel. Justice O'Connor, who concurred with the
Stenberg majority, is now gone. Justices Roberts and Alito are there, and their silent votes with the majority have produced the result.
Although the anti-abortion forces have reason to be dancing in the streets, there are a few points of note. First, Justice Kennedy does not seem to be inclined to overrule
Roe or
Casey. If overruling had been the crucial issue, the case would probably have gone the other way. It may be tempting to say that
Roe and
Casey are one step from being overruled, but that step is a mighty big one.
And indeed,
overruling could have been the crucial issue, but it was not. In other words, the majority might well have said that
Roe,
Casey and
Stenberg would require that the Act be struck down, unless these cases were overruled ... and then proceeded to do just that. Such a ruling would have been far more straightforward than Justice Kennedy's shallow and quirky analysis
BUT it might not have had majority support. It would therefore seem plausible that Justice Kennedy could not bring himself to join the "overrule" camp, but neither could he bring himself to say that abortion rights have been "re-affirmed"; as a result, he used the awkward "assumed" wording.
In other words, if Justices Thomas, Scalia, Roberts or Alito had written the opinion, there is a pretty good chance that they wouldn't have gotten Kennedy's vote.
Also of interest is that Justice Kennedy in
Stenberg was pretty keen on deferring to legislative factfinding. But in
Gonzales v. Carhart, he backpedaled, perhaps appalled by the shameless dishonesty of the Congressional "factfinding." Congress "found" that no medical schools provided instruction on the prohibited procedure, and that the procedure is never medically necessary. Both of these "findings" are flat-out false. (Justice Ginsburg's dissent pointed out additional "findings" that were bogus.)
Justice Scalia has gone on record as saying that the Court's jurisprudence should not change merely because its personnel have changed. But in this case, he apparently saw nothing to which to object.
