Partial-Birth Abortion and the Perils of Constitutional Common Law
Partial-Birth Abortion and the Perils of Constitutional Common Law
Robert J. Pushaw, Jr., 31 Harv. J.L. & Pub. Pol’y 519 (2008)
Gonzales v. Carhart continues the Supreme Court’s haphazard development of its abortion jurisprudence–and neatly illustrates everything that has gone awry in modern constitutional law. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, concluded that the federal Partial-Birth Abortion Ban Act of 2003 (PBABA) did not, on its face, unduly burden a woman’s constitutional right to obtain an abortion. Justices Thomas and Scalia would have upheld the statute simply because “the Court’s abortion jurisprudence … has no basis in the Constitution.” Justice Ginsburg and three other dissenters argued that the PBABA was indistinguishable from a state law that the Court previously had struck down in Stenberg v. Carhart. Meanwhile, all of the Justices simply assumed Congress had the power to enact the challenged legislation.
Gonzales followed a familiar pattern. Despite the new Chief Justice’s professed desire to avoid splintered decisions, the Court divided into moderate, conservative, and liberal camps–just as it has done with other contentious issues such as school integration, free speech, and the due process rights of enemy combatants. As usual, the Justices applied a murky common law to reach results that tracked their ideological views. Finally, the Court once again increased its own power and that of Congress.
Gonzales exemplifies the modern disintegration of the ideal of “the Court” expounding “the Constitution”–i.e., its language read in light of its underlying political structure and theory, its drafting and ratification history, and the understandings manifested by those who implemented its provisions for over a century. Rather, individual Justices have employed an eccentric version of common law.