Significant Risks: Gonzales v. Carhart and the Future of Abortion Law
David J. Garrow has posted this article on his website that is scheduled to appear in the University of Chicago’s Supreme Court Review (Hat tip to How Appealing). Garrow’s article begins:
The Supreme Court’s five-to-four upholding of the facial constitutionality of the Partial-Birth Abortion Ban Act (PBABA) of 2003 in April 2007 represented at least a symbolic break from its previous major abortion ruling, Stenberg v Carhart, in 2000. The Court’s grant of certiorari in Gonzales v Carhart was announced on Justice Samuel A. Alito’s first public day on the bench, February 21, 2006, and most commentators believed that Alito’s replacement of Justice Sandra Day O’Connor, who had cast the decisive fifth vote when Stenberg narrowly voided a Nebraska law banning “partial-birth” abortions, promised a different outcome in this case.
That proved correct, yet the crucial Justice, and author of an unusually intriguing majority opinion, was Anthony M. Kennedy, who was challenged to square his angry dissent in Stenberg with his insistent, ongoing support for his reading of the landmark controlling opinion in Planned Parenthood of Southeastern Pennsylvania v Casey, which he had so famously—or infamously—joined fifteen years earlier in June 1992. Kennedy’s opinion in Gonzales v Carhart drew considerable editorial obloquy,1 but a close and open-minded reading of the decision suggests that the ruling represents as narrow as possible an upholding of PBABA. Such a reading also indicates that Kennedy’s insistence that he has remained entirely true to what he said and signed onto in Casey is a highly credible contention that his critics have failed to consider carefully or fairly. Furthermore, a thorough and inclusive review of Gonzales v Carhart’s actual impact— upon the medical practice of abortion, upon abortion politics and legislation, and upon abortion litigation to date—reveals that in all three arenas the decision has had and likely will continue to have far more modest consequences than many critics and commentators initially proclaimed.