Justice Kennedy disappoints in "Partial Birth Abortion" decision

Here is the opinion, written by Justice Kennedy, and joined by Scalia, Thomas, Roberts and Alito. The dissenters were Ginsburg, Breyer, Stevens and Souter.

Here, here and here are excellent comments from Marty Lederman and Professor Jack Balkin at Balkinization.

My comments:

1. Justice Kennedy proves once again why he confuses his own private views with constitutional doctrine. In Lawrence v. Texas, he paternalistically took away from the nation's culture the right to decide issues of private morality and public laws with reference to homosexual conduct. Unlike abortion, which mostly has had a wink and nod cultural and sometimes legally sanctioned history, homosexuality, until recently, was regularly forbidden for most of Western history and people were regularly prosecuted for such conduct. Lawrence could have been decided on Fourteenth Amendment "equal protection" grounds: The way the sodomy statute was written in Texas, heterosexual couples could easily be prosecuted for acts of sodomy, but were not--while only homosexual couples were singled out. That would have forced Texas to re-write its sodomy law for only homosexual sodomy and created a space for pro-homosexual conduct advocates to make their case about whether to allow police authorities to arrest people in their bedroom for consensual, non-harmful conduct. But Kennedy took the paternalist route, substituting his own private sense of morality for constitutional doctrine.

Now, he's done it again in the partial birth abortion decision of Gonzalez v. Cathcart, particularly where he cries tears over anecdotal evidence of some women expressing regret over abortions, without recognizing why such a ground is extremely weak in light of women who regret not having an abortion--and women who are glad they had an abortion at a given time in their lives. The argument from the ancedotal studies is no different an argument than when anti-abortion advocates say, "Well, you could have aborted an Einstein or someone who finds the cure for cancer." In response, one simply responds, "Well, maybe we aborted Charles Manson or someone who would grow up to become a criminal."* Such arguments are simply too speculative to decide most issues regarding a constitutional right to abortion, including in this situation.

2. The reason I thought the federal law on the particular second trimester procedure, "dilation and evacuation" (D&E), was unconstitutional was because no matter how squeamish I am over the actual procedure (described in Part I(A) of the majority opinion), second trimester abortions constitute less than 10% of all abortions performed, and the procedure is undertaken largely to ensure the protection of the mother's life or even reasonable health or safety concerns of the mother (See: Ginsburg's dissent, Part I(C) for medical and safety discussion). Yet, the federal law was specifically written, as Justice Kennedy's opinion acknowledges at Part I(C), without creating an exception for the procedure to be used for the "health" of the mother. Kennedy also brushed aside the compelling point that the law's language was vague and uncertain in its language, as its prohibitory language could well include similar methods for second trimester abortions that would otherwise be proper and legal.

3. I realize Justice Kennedy was in the dissenters when the Supreme Court (in a 5-4 decision from 2000 with O'Connor in the majority), ruled an anti-partial birth abortion state law was unconstitutional. I just thought, with Kennedy's continuing pro-homosexuality jurisprudence, O'Connor's departure, and Kennedy's supposed fealty to stare decisis (upholding precedent), that he would hesitate to jump on board the train that is leading to a Supreme Court decision allowing a State to completely or mostly outlaw abortion again. That train just got a full and new head of steam by the rhetoric Kennedy used in the Gonzalez v. Cathcart decision.

4. I wish people would better understand Roe v. Wade, where former Mayo Clinic General Counsel, Justice Blackmun's decision understood the practicality of giving deference to science and medicine as to how abortions are performed. If one reads Ginsburg's dissent, one can better understand this point, though I wonder if Ginsburg could have said that particular point better. As Ginsburg pointed out, the consensus of the medical profession is that the procedure is safer than other procedures for a second trimester abortion. Roe tells us that, during the second trimester, or at least before the fetus' viability, the Court should give deference to the woman's life and health, not the life and health of the fetus, and again protect the compelling interest of the doctor-patient relationship. This is why the 2000 decision on such abortion procedures was correct, and the majority holding in Gonzalez v. Cathcart is wrong.

Still, it is now the law of the land, but the next line of attack on the decision could come in a few years when women who undergo alternative, and probably less safe second trimester abortions, and who suffer physical injury from those other methods, may yet prevail against this poorly drafted Congressional law. See: The Kennedy majority opinion's last paragraph about the Court being open to a review of the law on a "discrete" case and Ginsburg's point that this may be the only silver lining in the cloud regarding the decision (Part III(B) of Ginsburg's dissent).

* In stating this, I am not subscribing to the Freakonomics' economics professors who detected a link between the drop in crime rates in the 1990s from the abortion rates during the 1970s and 1980s. See here for an analysis of why that position is probably a weak link at best.

** In Doe v. Bolton (1973), the companion case to Roe v. Wade, held that an abortion may be allowed as a constitutional right to protect the "life or health" of the mother. The term "health" was not defined by the Court, and for some reason (I think cynical), anti-abortion advocates don't even bother to demand the legislature enact a reasonable working defintion.

(Edited)