For the past several years, the leaders of virtually every pro-life group in the country have been meeting quarterly in Washington, for the sake of comparing notes. At the most recent meeting, people were pressing the question on me: What do we do apart from the bill on partial birth abortions? And what would be the next step, on the chance that the bill will not only be passed in Congress but signed by the president? I was quite taken aback then by an offhand remark made to me at lunch by an old friend, who tracks the legal situation rather closely. He leaned in and spoke sotto voce, out of a sense of delicacy. Apparently, he did not wish to unsettle, or dishearten, any of the good folks gathered around us at adjoining tables. He said he was simply assuming now, after the decision of the Supreme Court this past summer in the Boerne case, that the bill on partial birth abortions was a dead letter. It could be passed again, of course, with renewed effects in educating the public, but my friend took Boerne as a signal that the Court would not uphold this legislation.
City of Boerne v. Flores had not touched on the subject of abortion. But it involved one of several, notable moves on the part of Congress to take up its warrant once again to act as an interpreter of the Constitution. The Court was also flexing its rather broad powers to “enforce” the 14th Amendment, and in the course of enforcing that amendment, Congress has the occasion to define more precisely the rights that are protected under that amendment. The vehicle at hand was the Religious Freedom Restoration Act. The Congress had sought, in effect, to revise, or undo, some decisions handed down by the Supreme Court; decisions that seemed to lighten the burdens of justification that the law has to bear when it restricts religious freedom. But the Court struck down this handiwork of Congress. Justice Kennedy wrote for the Court that there was a difference between “enforcing” the 14th Amendment and altering the Constitution. “Congress does not enforce a constitutional right,” he said, “by changing what the right is.” In striking down the act, the judges seemed to suggest that they would treat, as an affront, any attempt on the part of the Congress to start chipping away, or cutting back, on any “rights” that the Court had declared in its run of cases.
With the bill on partial birth abortions, Congress would be coming to the edge of that confrontation—and that was indeed the point. Congress would be trying to establish at least the limit to the right to abortion. It would also be reminding the courts of the discipline that must come with the “separation of powers.” The judicial power must extend to any case that arises under the Constitution and laws of the United States, but the same relation holds from the other side: If the courts articulate new rights under the Constitution, the legislative power must encompass the power to flesh out those rights, define them more precisely, and in defining their reach, marking their limits. But if the Court takes any move of that kind as threatening, then the Boerne case might indeed set the ground for an even firmer resistance on the part of the judges, even to the bill on partial birth abortions.
Still, that sense of the matter, offered by my friend, rather took me by surprise. Perhaps I was being awakened from my dogmatic slumber, but I hadn’t read the Boerne case in the same way. Justice Scalia was part of the majority in that case, and yet I could not imagine Scalia voting to strike down the bill on partial birth abortions. Of course, it must make a difference that the Religious Freedom Restoration Act was designed to undo a decision that Scalia had written. In Employment Services v. Smith (1990), Scalia had spoken for his colleagues as they refused, in effect, to exempt from the “drug laws” people who used peyote as part of a native American ritual. With that decision the Court simply restated the understanding that had been present from the beginning of the republic: The freedom of religion would not encompass a privilege of disobeying laws that were necessary for the peace and order of the community. As Scalia had put it, the freedom of religion would not entail a refusal to obey a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” The law restricting the use of drugs was not passed for the purpose of harassing any religious group. And if we simply gave exemptions to the religious, we would be evading the moral question at the heart of the problem: Is this measure established on grounds of reason clear enough, and compelling enough, that we would indeed be justified in enforcing it, as “law,” on everyone?
But Scalia’s decision in the Smith case set off tremors, because it was taken to overrule a set of other cases, running back to the ’60s, which suggested a different understanding: namely, that the law would give more leeway when its measures bore with more restrictive effects on the religious. Under those conditions, as the saying goes, the law would have to show a more “compelling interest” before it would tread on religious freedom. That was the formula that Congress picked up in the Religious Freedom Restoration Act, and as the law was applied in the Boerne case, it bore on a Catholic church in Boerne, Texas, not far from San Antonio. The church needed to be remodeled in order to accommodate a growing number of parishioners. And yet, the church was taken as an interesting example of the “mission style” in architecture. But then the city council passed an act to preserve certain historical buildings, and under that act the church was refused permission to alter its own building.
In other instances, these kinds of laws have created interferences that touch on matters of doctrine. But without that ingredient, the collision between the church and the authorities in Boerne could be no different from what it would be with any other owner of a building. And that conveys the problem from both sides: Almost any arrangement of public policy, from traffic lights to rescue squads, could tread on some beliefs of the many groups, in our day, that style themselves a “religion.” Federalism and local government could come apart, the laws could unravel, if these groups were given a standing exemption from the laws. On the other hand, the laws on historical preservation show just how widely, and often, governments can tread upon religion and harass the religious with measures that seem impeccably “neutral.” Our land seems to be teeming now with these laws, as plentiful as they are officious.
And these strains of principle and prudence may explain why many of us were ambivalent about the Religious Freedom Restoration Act. I happen to think that Justice Scalia got it thoroughly right in the Smith case, and therefore I could not help doubting that RFRA was the most defensible piece of legislation. But on the other hand, I did not wish to see Congress squelched when the members finally summoned their nerve, and took up their responsibility to interpret the Constitution. Yet, even with the decision in the Boerne case, it did not seem to me that the demise of RFRA would bear any necessary lessons for the bill on partial birth abortions. That bill would do nothing to disarrange federalism or local government. It would not overturn understandings that have been settled since the beginning of the republic. Neither would it directly challenge or overturn anything that the Court has previously declared.
In fact, even the members of the Supreme Court could be shocked to read the words of federal judge Richard Bilby, last October, when he enjoined the enforcement of Arizona’s new statute on partial birth abortions. Bilby thought the act was likely to be found unconstitutional because it could inhibit the freedom to abort a live but “nonviable fetus” that emerges from the womb. In other words, women must still be free to kill children at the point of birth lest it interfere with the freedom to kill live fetuses that have not reached yet the point of “viability.” By this construction, a child who survives the abortion may be killed for the sake—as one federal judge put it recently—of “complet[ing] the abortion.” Judge Bilby recorded the argument made by the defenders of the law, that its purpose was “to erect a firm barrier against infanticide.” The judges in the lower courts have concluded that they must resist that barrier if they would preserve the right to abortion. But when faced with this fruit of its work, the Supreme Court may well recoil. The judges have never acknowledged that they were creating a license for infanticide, but the bill on partial birth abortions would put that issue to them explicitly. Even the right to abortion must have its defining limit, and faced with that question, the judges could well conclude that it marks no revolution, no undoing just yet of Roe v. Wade, if they announce that they, too, have found their limit.