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Professor Douglas Kmiec Analyzes the Court's Decision

MALIBU, California, MAY 4, 2007 (Zenit) - The U.S. Supreme Court's recent decision to uphold a federal partial-birth abortion ban may be the necessary precedent to validate future laws defending life, according to an expert on family law.

For the first time since the Roe v. Wade decision in 1973, the U.S. Supreme Court has upheld a ban on a specific type of abortion.

For an in-depth analysis of this decision, we turned to Douglas Kmiec, professor and Caruso Family Chair in Constitutional Law at Pepperdine University, and a former justice department official and dean of the law school at Catholic University of America.

Q: First of all, can you tell us what the Supreme Court actually held in Gonzales v. Carhart?

Kmiec: Carhart upheld a nationwide ban on partial-birth abortion enacted by Congress as the Partial-Birth Abortion Ban Act of 2003.

Partial-birth abortion involves the near completed delivery of an intact child only to intentionally puncture the child's skull for purposes inflicting death by suctioning out the brain.

The Supreme Court found the state of Nebraska's ban of this gruesome procedure too vague to be enforceable, and lacking a health exception.

Congress tightened up the language and supplied an exception for life, but not for health. Responsible medical testimony found the procedure to be "never medically necessary" and fraught with its own health risks.

In its latest ruling, the court conceded that the need for a health exception was contested. Nevertheless, in spite of that medical uncertainty, the court found there was no basis to invalidate the law in its entirety.

Rather, the presumption should be in favor of the law's enforcement, leaving the door ajar just a bit should an unusually rare medical condition be specifically demonstrated to medically require the procedure.

In general, said the court, the federal restriction was perfectly valid since "the government has a legitimate and substantial interest in preserving and promoting fetal life."

Notwithstanding a great deal of hyperbole in the general press, Carhart is a faithful application of the earlier Casey precedent and it reaffirms that the states "retain a critical and legitimate role in legislating on the subject of abortion.... The political processes of the state are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential."

In this particular case, this meant that Congress did not need to supply a generally applicable health exception to the ban of a procedure that the Congress found was "never medically necessary."

The court did not necessarily accept that congressional finding; instead, it provided that any woman who believes she is facing a unique health challenge may make an individualized challenge to the ban on that case-by-case basis.

Q: There is some debate over whether Gonzales v. Carhart was a narrow decision that upheld a congressional law banning a specific abortion procedure or whether it completely changed the legal landscape of abortion. What is your assessment?

Kmiec: While only vindicating a ban of one notably ugly procedure, the ruling is important for the insight it supplies about the new "Roberts Court." Especially relevant is the extent to which the court chose to highlight the profound social injury that abortion represents to motherhood.

Writing for the court majority -- which included Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia -- Justice Anthony Kennedy affirmed that "respect for human life finds [its] ultimate expression in the bond of love the mother has for her child."

Acknowledging abortion to be a painful and difficult moral decision, the court pronounced that it would be "self-evident" for any mother to regret her choice to abort. The majority speculated that this pain would be far greater if the law had permitted a doctor to engage in the shocking killing of a child partially born.

From the technical perspective of the law's development, Carhart is important in a number of respects that will increase the likelihood that abortion regulation beyond this one procedure will be upheld in the future.

First, it is an elementary rule that "every reasonable construction must be resorted to in order to save a statute from unconstitutionality."

Prior to Carhart, this basic principle of law and judicial humility was nevertheless disregarded in abortion cases. It was almost as if abortion legislation was presumed invalid, rather than valid. Carhart seems to change this giving more presumptive validity to abortion laws generally.

Second, the court made it harder to make what lawyers call a "facial" challenge to an abortion law. A facial challenge claims that a law cannot be constitutionally applied in any circumstance. The Carhart decision held that facial attacks are not the preferred means of constitutional adjudication.

In saying this, the court was mitigating some of the confusion caused when the court seemingly departed from the "heavy burden" that is typically placed upon parties that seek to strike a legislative enactment in its entirety.

The normal rule -- outside the abortion context -- was that those making a facial challenge to a statute must show that no set of circumstances exists under which the act would be valid. The court did not return completely to this normal rule in Carhart, but it edged closer to it.

Q: One of the more interesting aspects of the case is that it appears to resurrect the idea that a state has a moral interest in protecting fetal life. Does Gonzales v. Carhart allow legislatures to justify abortion regulations on the basis that some practices are immoral or inhumane?

Kmiec: Yes, to a point. Carhart held that it was legitimate for Congress to conclude that "ethical and moral concerns" justified the special prohibition of a procedure that Congress determined bore a "disturbing similarity to the killing of a newborn infant."

Nevertheless, caution is appropriate here. The court still relied upon the ban not constituting a substantial obstacle or undue burden on the women's decision.

Thus, while moral considerations were important here insofar as they supplied the rational basis for congressional action, the court is not indicating that it will accept moral considerations as sufficient to outweigh a woman's decision generally.

Q: Justice Ruth Bader Ginsburg's dissent vehemently criticized Justice Kennedy's recognition of the negative effects of abortion on women, and that some women come to regret their abortion. Will this recognition influence future pro-life efforts?

Kmiec: Justice Kennedy has been wrongly criticized. The dissent suggests he is relying upon archaic stereotype or that he assumes women are "too fragile" to digest accurate descriptions of abortion procedures.

In truth, Justice Kennedy is respecting -- not subjugating -- the judgment of the woman when he posits that if she is properly informed, she would be less likely to choose abortion. There is no necessary identity between a woman choosing to have an abortion and intelligence.

Indeed, it is the state's assumption that the rational woman will forgo an abortion when she has all the facts. Justice Kennedy said: "the state's interest in respect for life is advanced by the dialogue that better informs ... expectant mothers ... of the consequences that follow from a decision to elect a late-term abortion."

Dissenting, Justice Ginsburg and her fellow dissenters -- Justices John Paul Stevens, Stephen Breyer, and David Souter -- characterized the abortion right as essential to a woman's autonomy and her "enjoyment of equal citizenship." Why a woman's equality could be claimed to depend upon the option of destroying the life of her child is unexplained.

Indeed, Justice Ginsburg comes very close to equating the protection of unborn children to abusive behavior toward women. Seemingly to refute the "bond of love" between mother and child noted by the majority, Justice Ginsburg emphasizes unwanted pregnancies and the daily incidents of sexual assault.

This is a non sequitur. Proscribing an inhuman abortion practice does not reimpose "discredited notions about women's place in the family and under the Constitution," nor does it condone domestic abuse.

Justice Ginsburg is right, of course, that at one time -- a half century or more ago -- the law rather exclusively highlighted "the destiny and mission of women to fulfill the noble and benign offices of wife and mother."

America can and should still celebrate these as noble callings. Nothing about protecting unborn life, however, requires that they be the only vocational choices of a woman.

What was the Supreme Court's greatest gift of insight in Carhart? It was the rejection of the pernicious idea that women can only achieve by standing upon the graves of their unborn children.

Q: Some critics of the decision say it was a case of five Catholic justices imposing their morality on the nation. How do you see it?

Kmiec: This is a canard.

What should determine the abortion question -- for Catholic or non-Catholic judges -- is whether the claimed right can legitimately be said to be consistent with the premise of an "unalienable right to life" in the Declaration of Independence -- America's document of incorporation as a nation -- and the history, tradition and practices of the people which inform the definition of the word "liberty" in the 14th amendment.

If abortion is inconsistent with either, it is questionable -- as a constitutional or legal matter -- irrespective of one's faith tradition. Notwithstanding abundant science and common observation, the beginning of life remains contested, of course, in the population at large.

Given this claimed disagreement, it may well be that only the people through their legislative choices can decide it. If that is so, it is sound constitutional jurisprudence for judges of any or no faith to permit the legislative voice to be heard.

Of course, it is for Catholics to bring to bear on that discussion the Catholic teaching on the sacredness of all life from the moment of conception.

It is wrong to think morality is irrelevant to the adopted law. If moral considerations informed the original constitutional text or statutes adopted under it, then the morality that has been incorporated into the law is and ought to be respected since it has been adopted by the people -- as law, not faith.

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Life, Abortion, Kmiec, Supreme, Court, Partial-birth, Law

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