In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) -- despite the absence of any statutory exception that would allow the procedure to be used when necessary to protect the health of the woman. Seven years ago, before the appointments of Justices Roberts and Alito, the Supreme Court held a virtually identical state law unconstitutional.
As Justice Ruth Bader Ginsburg made clear in her scathing dissenting opinion, the Court’s decision has put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. In all of these circumstances, and many others, the availability of intact D & E may be necessary to ensure the health of the woman.
It is important to note that the prohibition of intact D & E has nothing to do with preserving the life of a fetus. The “partial birth abortion” law does not prohibit any abortions. Rather, it prohibits only a particular means of performing abortion. If the woman is willing to undergo a greater than necessary risk to her health, she may terminate her pregnancy by other, less safe, methods. She may, for example, have the fetus terminated by injection prior to extraction, or removed by cesarean, or extracted by non-intact D & E (which involves dismembering the fetus in utero).
What, then, explains this decision? To be frank, the Court’s opinion is a hodgepodge of confusing and sometimes offensive ramblings about how women may “regret” having abortions and about how intact D & E “resembles” infanticide. But none of the Court’s musings credibly distinguish its earlier precedents. Never before has the Court allowed the state to restrict a woman’s right to terminate a pregnancy without an express statutory exception to protect the health or life of the woman. In Gonzales, the Court flatly rejected that long-standing principle.
Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are not Catholic all followed settled precedent. It is embarrassing, indeed mortifying, to point this out. Perhaps it is mere coincidence. But it is too obvious to ignore.
However awkward the question, it is legitimate to ask whether, in deciding this case, the five justices in the majority ignored the critical line between religious belief and public morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. For that reason, as the Supreme Court has recognized for more than thirty years, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question on the basis of personal religious belief, and especially not at the expense of the health of the woman.
In 1972-73, I had the distinct privilege of serving as a law clerk to Justice William J. Brennan, then the Court’s only Catholic justice. It was in that year that the Court decided Roe v. Wade. Justice Brennan struggled in that case, as he struggled in earlier cases involving such issues as school prayer, to separate his personal religious views from his views as a justice. He joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice.
As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is disconcerting that Justices Roberts, Scalia, Kennedy, Thomas and Alito may not have honored this precept.
