&quotA Democratic Vote by Nine Lawyers”

In Hill v. Colorado, the Court upheld a state statute banning protest or counseling directed at any person standing less than eight feet from the speaker and within one hundred feet of a health care facility. In the process, while pretending not to, the Court upended decades of its own First Amendment jurisprudence. Laws effecting content-based suppression of peaceful speech, even when they were narrowly drafted, had previously been presumptively unconstitutional. After Hill, however, the federal and state governments will be allowed to promulgate broad, “prophylactic” gag orders against anyone on a public sidewalk who might dare subject “unwilling” audiences to “offensive messages.” In any other context, a speech-rights-crushing Supreme Court edict like Hill would seem unthinkable. But in modern America, apparently, abortion on demand now trumps the Bill of Rights.

Stenberg v. Carhart, the day’s second abortion decision, made a similarly tortured hash of both legal precedent and political principle, to say nothing of basic morality. Here, by a 5-4 vote, the Supreme Court invalidated Nebraska’s prohibition against partial-birth abortion, a species of sadism masquerading as medicine. Two lengthy, meticulous, and impassioned dissents — by Justices Clarence Thomas and Anthony Kennedy — made plain how fantastically dishonest was the “reasoning” by which the Carhart majority applied constitutional protection to such butchery.

But it was left to Justice Antonin Scalia, in his separate Carhart dissent, to remind us how perfectly both June 28 decisions reflect the deeper, noxious logic of the Supreme Court’s abortion rulings as a whole — to remind us, that is, how Roe v. Wade and Planned Parenthood v. Casey make additional atrocities like Hill and Carhart inevitable. The Constitution will not be returned to health until Roe and Casey are overturned.

Justice Scalia’s eloquent dissent follows, slightly abridged.

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child — one cannot even accurately say an entirely unborn human child — proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception” — which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) — is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

[Justices Thomas and Kennedy] have, appropriately enough, set out to establish that today’s result does not follow from this Court’s most recent pronouncement on the matter of abortion, Planned Parenthood v. Casey (1992). It would be unfortunate, however, if those who disagree with the result were induced to regard it as merely a regrettable misapplication of Casey. It is not that, but is Casey’s logical and entirely predictable consequence. To be sure, the Court’s construction of this statute so as to make it include procedures other than live-birth abortion involves not only a disregard of fair meaning, but an abandonment of the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void. Casey does not permit that jurisprudential novelty — which must be chalked up to the Court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.

But the Court gives a second and independent reason for invalidating this humane (not to say anti-barbarian) law: That it fails to allow an exception for the situation in which the abortionist believes that this live-birth method of destroying the child might be safer for the woman. (As pointed out by Justice Thomas, and elaborated upon by Justice Kennedy, there is no good reason to believe this is ever the case, but — who knows? — it sometime might be.)

I have joined Justice Thomas’s dissent because I agree that today’s decision is an “unprecedented expansio[n]” of our prior cases, “is not mandated” by Casey’s “undue burden” test, and can even be called (though this pushes me to the limit of my belief) “obviously irreconcilable with Casey’s explication of what its undue-burden standard requires.” But I never put much stock in Casey’s explication of the inexplicable. In the last analysis, my judgement that Casey does not support today’s tragic result can be traced to the fact that what I consider to be an “undue burden” is different from what the majority considers to be an “undue burden” — a conclusion that cannot be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today’s majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised — a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue” — i.e., goes too far.

In my dissent in Casey, I wrote that the “undue burden” test made law by the joint opinion created a standard that was “as doubtful in application as it is unprincipled in origin,” “hopelessly unworkable in practice,” [and] “ultimately standardless.” Today’s decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law — any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgement of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism — as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “the issue of abortion is one of the most contentious and controversial in contemporary American society,” persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people — where the Constitution, by its silence on the subject, left it — and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

Antonin Scalia, for the Editors