Although expected, when it came it still felt like a kick to the abdomen. I am referring to Justice Stephen Breyer’s opinion for a 5-4 Supreme Court majority overturning Nebraska’s partial-birth abortion ban (Stenberg v. Carhart). This opinion forces us to consider that future attempts to limit abortion will likely take place in an environment more like the days before Webster and Casey than the days after.
Incremental as they were (and, in Casey particularly, with disastrous concessions to abortion culture), both Webster and Casey brimmed with acknowledgments of states’ legitimate interests in unborn human life. States could express their distaste for abortion, evidence a “bias for life” in allocating state monies, and require before abortions some of the same safeguards required before other surgeries.
But from the beginning, Stenberg heads in the other direction: a bias for unfettered abortion. Breyer’s opinion describes Roe’s holding as protecting “the woman’s right to choose”—language used only by the most ardent abortion advocates. He fails even to mention the possibility—raised continually by lawyers throughout this proceeding—that Roe does not govern the procedure at issue. (Roe did not adjudicate and left standing an extant Texas law forbidding killing a child in the process of delivery.) And he dismisses, and comes close to ridiculing, Nebraska’s serious interests in erecting a wall of separation between abortion and infanticide.
The overreaching most likely to catch the attention of the general public, however, is the majority’s holding that partial-birth abortion, as a matter of fact, can be a medically necessary procedure. As a matter of law, the Court then holds, any ban must include a health exception. Without delving too deeply into the mountain of evidence to the contrary (from traditional abortion supporters like the American Medical Association and a number of late-term abortionists), it will suffice to note that the Court accorded the greatest weight to evidence from the complaining doctor, Carhart, and another abortionist who has never used the partial-birth technique. In the words of Justice Kennedy’s dissent: “For it is now Dr. Leroy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people.”
Alas, Justice Kennedy felt himself deeply betrayed by the majority’s application of the standardless “undue burden” test he helped create in Casey. But it was Justice Scalia who had the superior insight: “There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised—a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not)…but upon the pure policy question whether this limitation upon abortion is ‘undue’—i.e., goes too far.”
Stenberg is a new low—similar to pre-Webster lows because the Court appears simply allergic to attempts to limit abortion; different because the act at stake is more like infanticide. Several years from now, the pro-life movement will be pointing to Stenberg for one of two reasons: either because it was the outrage that sparked dramatic growth in the belief that Roe should go or because it was a failure of such large proportions, a defeat of our momentum in the culture, that we couldn’t get up again. The decision is ours today.