The American Constitution Society (my employer) is running a
five part Supreme Court preview at our blog. The first installment discusses
Gonzales v. Carhart &
Gonzales v. Planned Parenthood, two cases which consider whether a woman,
whose health is endangered by her pregnancy, has a constitutional right to a safe abortion. As authors Pamela Harris & Dawn Johnsen explain, the Supreme Court has tread this ground before:
In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court struck down Nebraska's ban on what the law called "partial-birth abortions." The Court held that the law was unconstitutional on two grounds: first, it failed to include a "health exception" for circumstances in which the banned method would be the safest form of abortion for a woman, 530 U.S. at 930-38; and second, the definition of the banned procedure was so broad that it would encompass-and prohibit-the vast majority of surgical abortions performed in the second trimester, which begins at 12 weeks of pregnancy, long before fetal viability, id. at 938-40.
Since then, Congress passed a law which is "essentially the same" as the one struck down in Stenberg. Harris & Johnsen continue:
So why, then, isn't this an open-and-shut case now that it is back before the Supreme Court? Because Stenberg was a 5-4 decision, and Justice O'Connor, who was in the majority, has been replaced by Justice Alito. . . . the Stenberg dissenters-again, especially Justice Kennedy-were particularly fervent in their belief that the Nebraska law should stand, regardless of what they termed "marginal" costs to women's physical safety. 530 U.S. at 967 (Kennedy, J., dissenting). With the substitution of Justice Alito for Justice O'Connor, we may well have five Justices prepared to abandon Stenberg . . . .
So what does this mean?
As an increasingly conservative Court shifted from Roe's "fundamental rights" analysis to Casey's more malleable "undue burden" test, one bright-line rule remained the same: a pregnant woman's safety may not be subordinated, by any degree, to government opposition to abortion. A holding in this case that the government may deny women seeking legal abortions access to the surgical procedure safest for them, and instead impose on women unnecessary health risks, would destabilize decades of "health exception" precedent and call into question the critical predicate of the Roe-Casey-Stenberg line of cases: that women's health is so important that it outweighs any governmental interest in restricting abortion.
ACS' Supreme Court preview will continue tomorrow. Other cases to be considered are:
- How quickly a victim of race discrimination in the workplace must initiate an action against a discriminatory employer in order to obtain relief.
- Whether the Clean Air Act imposes a mandate on the EPA to issue rules restricting greenhouse gas emmisions.
- To what extent a court may impose punitive damages on a company engaged in "highly reprehensible" acts.
- Whether the Constitution denies local school districts the authority to voluntarily integrate racially segregated schools.