Professor Douglas Kmiec Analyzes the Court's Decision
MALIBU, California, 3 MAY 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, ZENIT 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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. ZE07050319