Carhart Decision
Dividing 5-4, the Supreme Court today upheld the federal partial-birth abortion statute in the consolidated cases Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382. (Decision here (pdf)) In reversing the 8th and 9th Circuits, both of which had affirmed district court injunctions against enforcement, the Court held that the statute was not unconstitutional as written:
The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.
Although the Court rejected plaintiffs' facial challenge on the merits, the Court explained that the facial challenges "should not have been entertained in the first instance." The Court held that "the proper manner to protect the health of the woman [is to show] in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used." Because the Court concluded that plaintiffs "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," it did not address the somewhat confused standard the Court has previously applied to facial challenges involving abortion statutes. Compare Ohio v. Akron Center for Reproductive Rights (plaintiff must prove there is "no set of circumstances under which the act would be valid") with Planned Parenthood v. Casey (plaintiff must show act is invalid in a "large fraction of" cases).
While the Court leaves the door open for as-applied challenges, its recognition that other "safe alternatives" are available strongly suggests that such challenges based on the health of the woman would fail in all but the most compelling of circumstances. And, as the Court indicated, the statute already contains an exception for procedures necessary to preserve the life of the woman. Thus, the Court emphasized, no challenge is necessary where where the life, as opposed to the health, of the woman is at stake.
Kennedy was joined in the majority by Chief Justice Roberts and Justices Scalia, Alito and Thomas. Justice Ginsburg wrote for the four dissenters, characterizing today's ruling as an "alarming" decision that "refuses to take Casey and Stenberg seriously."
Parting Shot: Justice Ginsburg blames today's result on the Court's revised composition and, in doing so, uses language that recalls recent confirmation hearings: "Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of 'the rule of law' and the 'principles of stare decisis.'" (emphasis added). I am curious as to whether Justices have, in the past, made overt reference to the composition of the Court as an explanation for a particular result. To me, the language is quite jarring but, for all I know, it may be de rigour.
As ever, check in with SCOTUSBlog for round ups of what is sure to be a day of rough-and-tumble reaction throughout the blogosphere. The Conspiracy (here, here and here), Above the Law and lawhawk are already on the case.
Update(s): Brendan Loy is amused by the Associated Press's apparent confusion over the SCOTUS's role in our constitutional government (via Insty). Rick Hasen at Election Law wonders what impact today's decision might have on the campaign finance issues presented in Wiconsin Right to Life (background here).
