The Supreme Court and The Big One

I want to expand on our coverage of the Supreme Court's agreement to reconsider its ruling on state late-term abortion bans and the ramifications of South Dakota's legislative assault on Roe v. Wade.

It hasn't been covered nearly as well as Vice President Cheney's hunting accident, but I think most Americans would be interested to know that the Supreme Court of the US (hereafter SCOTUS) will very soon hear a real, live case about abortion. No more guessing and speculation about where justices stand; everything will be on the table.

Several states, including our neighbor to the west, have passed laws outlawing third-trimester, "intact dilation and extraction," "late term," or "partial birth" abortion. Those bans, including a federal ban passed by Congress in 2003, have been struck down by federal courts for not including a clause allowing abortions if the health of the mother depended upon it. It's hard to tell with the literature put out by advocacy groups on both sides, but it seems to me that all of these laws restricting abortions allowed the procedure in cases where the life of the mother was in danger but some have stopped short of allowing physicians to only show that the health of the mother is in danger. Legal reasoning for not including the clause varies from 'a health exception is assumed and doesn't need to be stated' to Congress's finding (after testimony from physicians) that late term abortions never need to be performed for health reasons.

Anyway, courts have struck down these laws because of their interpretation of the 1992 "undue burden" standard issued by the Supreme Court, written by Sandra Day O'Connor (recently replaced by Justice Samuel Alito).

As late as 2000, SCOTUS used this standard to strike down a Nebraska ban on late term abortions. Conservatives call these partial-birth abortions because the laws penalize physicians who terminate the life of a baby/fetus that is partially delivered (inducing delivery to kill the fetus is the safest way to prevent complications with the mother). After the Nebraska law was struck down in 2000, they enacted another ban, which the court has agreed to hear.

And as Radar noted, South Dakota just this past week enacted a law (by a nearly veto-proof majority) that penalizes physicians for performing any type of abortion except in those cases where the life of the mother is risked. By any standard the SCOTUS has used, this law is unconstitutional (much like the plaintiffs in Brown v. Board of Education proposed a clearly unconstitutional solution in 1952-3). It is a frontal assault on the core holding of Roe, and will be struck down by lower courts adhering to precedent until it reaches the highest court, where four of nine justices must agree to hear the case (which is sadly questionable itself).

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If you're still with me...Commentators and pundits used to say the most powerful person in the U.S. was O'Connor because she was the swing vote on so many out-front issues. I don't know about "most powerful person in the country," but Anthony Kennedy is certainly the new court pendulum.

Kennedy joined O'Connor in upholding the central matter of Roe in 1992 when four justices (White, Rehnquist, Scalia, Thomas) argued it was time to scrap it. Now there are presumably four justices who would want to strike down Roe (Scalia, Thomas, Roberts, Alito) and four who presumably want to strengthen Roe (Stevens, Souter, Ginsburg, Breyer).

The ninth justice, Kennedy, is the keystone. And though he has voted to strike down some restrictions, he's willing to go farther than O'Connor letting other restrictions stand. This specific case does not look good for the opponents of Nebraska's law because Justice Kennedy dissented in 2000 when five justices struck down the late-term ban. He described in graphic detail the gruesome method of abortion that was outlawed by citizens and then allowed through the court. In strong language, he said the court's failure to allow the citizens of the state any say in the matter undermines the court's position.

Read his dissent and it's hard to think he'll have completely changed his mind in a mere six years.

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The bottom line: this will be a test of Chief Justice Roberts. Presuming a five-justice majority is willing to let Nebraska's law stand, the CJ gets to pick who writes the opinion of the majority...but it needs to have five signers to be the new standard. Will Roberts be able to get Kennedy to go along with a broader holding, written by Scalia for example, that paves the way to giving states wide latitude for making restrictions? If four justices agree to a broad approval for state restrictions but Kennedy writes his own opinion and only concurs on narrow grounds, then we once again have a fractured court and an unclear message to lower courts and state legislatures. Will the CJ keep Kennedy on board for a big decision?

The best thing that could happen is for the court to take the extra step and reason that state laws regarding abortion are preeminent, essentially striking down Roe. However, there is almost zero possibility that five justices can be found to take that extra step on this case. Never fear, though, South Dakota's ban is probably a short time (2-3 years?) away from reaching the Court. Even if the court strikes that down, there's nothing stopping states from continuing to challenge the ruling. Side note: it reminds me of local option sales tax votes, people who propose the sales taxes can just keep getting it on the ballot year after year until it wins.

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As I have said before, I'm not ecstatic about overturning Roe V. Wade because I think all abortion should be banned everywhere. I haven't and never will contribute to or volunteer for groups whose main purpose is enacting restrictions on abortion. But if states decide to enact abortion bans, it's clear to me that's their prerogative and it's important they have that right--that's why Roe is unconstitutional. Guess what: if states decide to allow abortions, that's their right, too!

Good or bad, Roe has become the focal point of questions regarding constitutional interpretation. Striking down such a blatant overreach would do much to turn the corner on inventing penumbras, issuing decisions based on foreign laws, and generally making it up as you go. The sooner we get this mess over with, the sooner the battleground again returns to it's proper outlet: the legislature. It starts with Roe.