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.
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