A Stitch in Haste

Here are my hasty stitches on the Supreme Court's ruling upholding the Partial-Birth Abortion Ban Act of 2003:

--While an undoubtedly important case, I don't think it's as apocalyptic regarding the future of reproductive rights as some pro-choice advocates insist, for two reasons:

1. Partial-birth abortion ("dilation and extraction," or "D&X") truly is an extreme and graphic procedure. Much of modern medicine is. D&X represents the absolute fringe of abortion procedures — as "push the envelope" as possible. It accounts for less than 1% of all abortions, and is exclusively a post-viability procedure. It is not irrational to be pro-choice, but disturbed by D&X — this appears to be precisely Justice Kennedy's position.

2. Neither Chief Justice Roberts nor Justice Alito joined Justice Thomas's "not in the Constitution" concurrence calling for the overturning of Roe and Casey (sidebar to Thomas: try the Ninth Amendment). Of course, Roberts and Alito didn't have to join, and thereby telegraph their views, but the question of whether this Court would ever opt for "no abortion never" is still unanswered.

--The argument that the lack of a health exception for the mother is facially valid, but may be unconstitutional as applied, strikes me as bizarre and dangerous. A decision that should be made by patients and physicians will now be made by patients, physicians and judges. Still, that's better than the decision being made by politicians.

--Justice Ginsburg is correct that courts should not be backpedaling to a view of women as especially susceptible to emotional (i.e., irrational) decisions and must therefore be "protected" from "manipulative" physicians or counselors. That's Nineteenth Century thinking, and has no place in the Twenty-First Century.

--The most interesting aspect of the decision to me was the quite clear, even indignant, dismissal — by both sides — of Congress' disgraceful and patently absurd "findings of fact" that accompanied the Partial-Birth Abortion Ban Act of 2003.

The majority: "[S]ome of the Act's recitations are factually incorrect and some of the important findings have been superseded." Moreover: "Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." And: "Uncritical deference to Congress' factual findings in these cases is inappropriate."

The dissent: "The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede." And: "In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence."

For background on the pathetic "fact-finding" by Congress:

Wrote Judge Hamilton, "The oral testimony before Congress was heavily weighted in favor of the Act. ... It is apparent to this court ... that the oral testimony before Congress was not only unbalanced, but intentionally polemic." Similarly, Judge Casey, in a particularly scathing critique, found that "Congress did not hold extensive hearings, nor did it carefully consider the evidence before arriving at its findings. ... Even the Government's own experts disagreed with almost all of Congress's factual findings." All three judges not only disagreed that Congress's findings were entitled to the level of deference that Congress wanted, but found them, time and time again, to be unsupported by the evidence presented to Congress and patently unreasonable.

Justice should never defer to a lie, and judges should never defer to liars. Which is why a presumptive judicial deference to "legislative intent" is not only preposterous but also dangerous. (For a less monumental example, see this post.)

The greatest threat to a free society is a lack of "activist judges." This case is regrettable proof of that.

The case is Gonzales v. Carhart ("Carhart II"), No. 05-380 (April 18, 2007) (PDF - 73 pages)