America’s socio-political left is up in arms about the Supreme Court’s April 18 decision to uphold a ban on partial-birth abortions. Conservatives are pleased with the case but consider it somewhat small potatoes.
How can one side claim to have suffered a big defeat while the other claims only a small victory? The answer lies in the differences between how the left and the right approach the entire concept of constitutional law.
First, some background: The April decision, Gonzales v. Carhart, was the first time since 1973’s Roe v. Wade case that the high court upheld a significant legislative restriction on abortion.
The left was apoplectic. At a June 14 forum at the National Press Club, Planned Parenthood lawyer Eve Gartner called the decision “radical” and “troubling,” and fumed that it came about due to “the moral code of five members of the Supreme Court in 2007.”
Conservative Ed Whelan, president of the Ethics and Public Policy Center, took strong exception to the latter remark. He said the justices were not applying their own moral code but deferring to the democratically elected Congress. And that’s good, he said: “We need to have abortion restored to the democratic processes.”
In a nutshell, that exchange encapsulates the whole court debate between left and right. The left sees judges as independent moral actors who lay down the law based on what they think will be best for society. The right sees jurists as officials constrained by the actions oflegislatures, or of the people as a whole acting through the democratically ratified Constitution.
So when the left looks for guidance on how to apply abstract, judge-made principles, it looks less to the actual language of the Constitution and statutes (which is what the right would do) than it does to an almost endless series of hair-splitting “tests” of a bill’s constitutionality. Where do those tests come from? Other judges, of course — judges who repeatedly parse, massage and fiddle with each other’s arbitrary edicts.
Thus it was that Justice Ruth Bader Ginsburg, in her dissent from the 5-4 Gonzales v. Carhart ruling, made much of something called the “large fraction test” promulgated in the landmark 1992 abortion case of Planned Parenthood v. Casey — namely, that states should be forbidden from erecting a “substantial obstacle” against abortions for a “large fraction” of the women affected by the law.
The battle then becomes how one determines how to measure that fraction in the first place, and pretty soon, the debate becomes lost in the weeds.
Likewise, another panelist at the press club forum, Marcia Greenburger of the National Women’s Law Center, complained that pro-choice advocates knew the new Carhart ruling was “alarming” and “chilling” as soon as they saw that the court applied yet another judge-created standard, the “rational basis test.” (Please don’t ask.)
To conservatives, this is mostly bosh. All the court decided in April, Whelan said, was that it could not uphold a “facial challenge” to the entirety of a limited restriction on abortion. The pro-choice side had argued that the law banning partial-birth abortions was unconstitutional on its face, whereas the court ruled that a plaintiff would need to show an actual, real-life example of how the law violates constitutional rights.
All the hair-splitting tests, in effect, obfuscate the issue of whether the people, acting through their elected representatives in Congress, have any right to regulate abortion. In this case, Congress’ regulation itself was only a small one. That’s why, Whelan concluded, “In the grand scheme of things, Gonzales v. Carhart is a minor ruling.”
Indeed, the narrowness of the ruling has disturbed some conservatives. The Washington Post reported on June 4 that “five small but vocal groups called the Carhart decision ‘wicked’ ” because it leaves so much of the national abortion regime untouched.
Meanwhile, other judicial conservatives noted that even on the narrow sub-issue of partial-birth abortions, key “swing” Justice Anthony Kennedy could be interpreted to have ceded more ground to the left. Rather than overturning a previous court decision that ruled a different partial-birth abortion ban to be unconstitutional, Kennedy instead distinguished the new case from the prior one.
In effect, the new decision could be seen as ratifying the previous pro-choice ruling because it allows elected legislatures to restrict partial-birth abortions only under certain, highly circumscribed rules.
It’s no wonder, then, that conservatives’ celebration of the new Carhart case has been somewhat muted: It’s still the courts, rather than elected legislators, that rule the roost.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator.
