No close observer of the Supreme Court was completely surprised by the decision overturning Nebraska’s partial-birth abortion prohibition (Stenberg v. Carhart). Nevertheless, the defense of so barbarous an act was a stunning demonstration of raw judicial power. By a vote of 5 to 4, the justices applied the test they had contrived in 1992—that the state may not impose an “undue burden” on women who may wish to abort. Nebraska’s restriction was deemed “undue” because (a) the prohibited procedure, under certain hypothetical circumstances, might be confused with another constitutionally secure form of abortion and (b) the statute lacked an exception for the woman’s “health.”
The holding is noteworthy in many respects. First, it confirms the suspicion that when abortion is in issue, ideology, not facts, will prevail. Half the laws on our books would collapse if they had to face a parade of worst-case hypotheticals. Absent extraordinary circumstances, federal courts defer to legislative judgment on policy until presented with an actual case applying the imagined statutory misinterpretation. Stenberg presented no such circumstance. The majority went out of its way to void the Nebraska law, demonstrating (not for the first time) a judicial double standard for abortion cases.
The double standard reappeared in a Colorado case decided the same day, when the Court upheld severe restrictions on abortion protesters (Hill v. Colorado). In any other setting, a regulation of this sort would have prompted howls of outrage from civil libertarians about the rights of free speech and peaceful assembly. The Court’s majority has, in effect, created a two-tiered First Amendment, one for pro-life demonstrators (restrictive) and one for everyone else (expansive).
Second, the suggested health exception is a sham. In Doe v. Bolton, the companion case to Roe v. Wade, the Court made plain that “health” means “mental health” and that mental health includes a subjective sense of well-being. Bottom line: If a woman says she’ll be unhappy if denied an abortion, and her doctor agrees, she wins. To demand a health exception for partial-birth abortion statutes vitiates their effect altogether. Everyone on the Court knows this. So do Bill Clinton and Al Gore, which is why they will accept a ban containing a maternal health exception.
Third, the majority opinion opens the door to infanticide. No case has been argued before the Court involving an infant intended for abortion who is nevertheless born alive, but that day is not far off. If it comes to that, the majority may recover its moral sense and recoil in horror at the prospect. But Stenberg furnishes no ground for articulating its horror. Like all abortion cases, it assumes that the pregnant woman’s interest is the only thing in play and that the child’s rights, if any, depend entirely on her will. Distinguishing between a partially delivered child and one who is separated from its mother cannot be done on the legal, moral, and biological premises routinely indulged by the Court. If it wishes to draw back from licensing constitutionally sanctioned homicide, the majority will have to contrive an argument at odds with its execrable abortion jurisprudence.
Finally, the majority has brought the nation perilously close to the constitutional dilemma posed by the Dred Scott case. The Court’s writ binds the parties in cases before it, but as Abraham Lincoln reminded us, the justices are not vested with monopolistic powers of constitutional interpretation. To abide by a particular decision is one thing; to accept its reasoning as determinative of all analogous future cases invites judicial tyranny. If partial-birth abortion may not be effectively prohibited—and that is precisely what the Court has just decreed—then how can the moral sense of the people, 70 percent of whom oppose the practice, express itself?
A compelling salient is presented by Rep. Charles Canady’s bill (H.R. 4292) providing legal protection for children who survive an abortion. Passage would send a strong congressional signal to the Court that infanticide is off the agenda. It will also drive abortion proponents crazy, because once its premises are acknowledged, the legal fiction of Roe starts to unravel. Let them argue that legalized abortion requires a dead child, even when she is already separated from her mother. By endorsing Canady’s bill, Governor Bush will simultaneously win the hearts and minds of the American people and prepare the way for an honest national conversation on abortion.