Partial-birth abortion and the perils of constitutional common law.

AuthorPushaw, Jr., Robert J.

INTRODUCTION I. THE "CONSTITUTIONAL" LAW GOVERNING ABORTION A. The Right of Privacy B. The Right to Abortion 1. Roe v. Wade 2. The Reaction to Roe 3. Refining Roe 4. Analyzing the Post-Roe Cases 5. Planned Parenthood v. Casey 6. Critiquing Casey II. THE BATTLE OVER PARTIAL-BIRTH ABORTION A. Stenberg v. Carhart 1. The Court's Decision 2. The Reaction to Stenberg B. The Congressional Ban on Partial-Birth Abortion 1. The Statute 2. Gonzales v. Carhart 3. An Analysis of Gonzales III. THE CONVERGENCE OF CONSTITUTIONAL LAW AND POLITICS A. The Common Law of the Constitution B. A Critique of Modern Constitutional Decision Making CONCLUSION INTRODUCTION

Gonzales v. Carhart (1) continues the Supreme Court's haphazard development of its abortion jurisprudence--and neatly illustrates everything that has gone awry in modern constitutional law. Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, concluded that the federal Partial-Birth Abortion Ban Act of 2003 (PBABA) (2) did not, on its face, unduly burden a woman's constitutional right to obtain an abortion. (3) Justices Thomas and Scalia would have upheld the statute simply because "the Court's abortion jurisprudence ... has no basis in the Constitution." (4) Justice Ginsburg and three other dissenters argued that the PBABA was indistinguishable from a state law that the Court previously had struck down in Stenberg v. Carhart. (5) Meanwhile, all of the Justices simply assumed Congress had the power to enact the challenged legislation. (6)

Gonzales followed a familiar pattern. Despite the new Chief Justice's professed desire to avoid splintered decisions, (7) the Court divided into moderate, conservative, and liberal camps-just as it has done with other contentious issues such as school integration, free speech, and the due process rights of enemy combatants. (8) As usual, the Justices applied a murky common law to reach results that tracked their ideological views. (9) Finally, the Court once again increased its own power and that of Congress. (10)

Gonzales exemplifies the modern disintegration of the ideal of "the Court" expounding "the Constitution"--i.e., its language read in light of its underlying political structure and theory, its drafting and ratification history, and the understandings manifested by those who implemented its provisions for over a century. Rather, individual Justices have employed an eccentric version of common law. (11)

In the Anglo-American system, legislatures make rules expressing their constituents' preferred policies, but sometimes delegate this power in certain areas (e.g., property, contracts, and torts) to courts, which gradually develop the law on a case-by-case basis. (12) Stare decisis commands judges to follow established precedent absent compelling reasons for departure-most pertinently, concerns that a rule has become unacceptable in light of changed social conditions. (13) Moreover, common law is subject to legislative override. (14)

This traditional, and restrained, model of adjudication has not been faithfully applied in contemporary constitutional adjudication. Most notably, constitutional law has been marked by abrupt shifts, not incremental doctrinal tinkering. For instance, in 1937, the Court suddenly abandoned a century-and-a-half of case law imposing limits on Congress and instead interpreted Article I as conferring virtually untrammeled legislative power. (15) This turnaround reflected five Justices' perception of sound governmental and economic policy during the Depression. (16) President Roosevelt solidified this jurisprudence by appointing Justices based primarily on their political commitment to the New Deal, not on judicial experience or legal acumen. (17) A generation later, the Warren Court dismantled most precedent concerning individual rights and reinterpreted the Constitution to implement ideas about liberty and equality that incorporated progressive social and moral views. (18) Even the supposedly conservative Burger and Rehnquist Courts occasionally unleashed unprecedented thunderbolts, such as Roe v. Wade. (19)

These transformative cases have survived largely intact because of a coalition between two groups of Justices. First, those who joined the original opinions and their like-minded successors have voted to retain, and sometimes extend, the landmark decisions. Second, swing Justices (typically moderate Republicans like Stewart, Powell, O'Connor, and Kennedy) have tended to follow the basic precedents, sometimes with modifications. (20) Their stated justification has been stare decisis, (21) but their willingness to overturn precedent in other areas suggests that they selectively invoke this doctrine to disguise personal or policy judgments. (22) Finally, a third group of Justices--including those who dissented in the original cases and their sympathetic successors--often have tried to overrule these decisions or limit them to the extent practicable. (23)

Unlike in common law, then, stare decisis has little binding force in constitutional derision making. Some Justices have maintained that this is so because the fundamental law is the Constitution itself, not judicial interpretations of it. (24) More pragmatic Justices have invoked stare decisis when they wanted to reach a result that was dubious under conventional constitutional analysis, but have ignored this doctrine when they wished to achieve a different policy outcome that conflicted with precedent. (25)

Furthermore, no legislative oversight of constitutional common law is permitted. Because the modern Court has adopted the ahistorical idea that it is the sole legitimate interpreter of the Constitution, (26) it has resisted congressional efforts to correct its mistakes, even in ways that enhance individual liberty. (27)

In short, constitutional adjudication involves an idiosyncratic common law in which stare decisis is either invoked selectively (to defend a previous revolutionary case implementing some preferred policy that had no constitutional roots) or flatly rejected, prior decisions are freely modified, and legislatures have no input. This approach makes it accurate, but somewhat beside the point, to criticize the Court for its lack of fidelity to the written Constitution. Rather, it would seem more sensible to evaluate the Justices' work under traditional common law standards, which focus on whether a decision maintains consistency with earlier holdings while developing the law in a fashion that achieves the soundest possible policy position. Under this test, many of the Court's constitutional cases fare poorly.

Realists, however, would judge constitutional opinions simply based on their agreement or disagreement with the outcome--and would support Justices who will pursue their political and ideological goals. (28) Most Americans have become realists. Although many would contend that such pragmatism is healthy, I believe it has irreversibly corroded the idea of the Constitution as fundamental law.

This Article explores three aspects of Gonzales. Part I places this case in the context of the major abortion decisions. The Court has frankly admitted that its abortion jurisprudence has no foundation in the Constitution as originally intended, understood, and implemented, but rather embodies evolving constitutional "ideals" of privacy, liberty, and equality. Measured by classical common law standards, this case law retains one consistent thread--women have a right to abortion before fetal viability--but otherwise lacks coherence. Realistically, evaluations of the Court's decisions depend almost entirely on one's personal views about abortion.

Part II examines the partial-birth abortion litigation and reaches two conclusions. First, contrary to popular belief, Gonzales did not represent a major shift that will lead the Court to reject or severely curtail abortion rights. Indeed, only Justices Scalia and Thomas favored such a radical change, which is a cornerstone of the conservative policy agenda. (29) By contrast, four of their colleagues (Justices Stevens, Souter, Ginsburg, and Breyer) have embraced the diametrically opposite--and mainstream liberal--position of "abortion on demand." (30) The three swing Justices (Roberts, Kennedy, and Alito) not only refused to question the basic right to abortion, but also suggested that even laws banning partial-birth abortion might be unconstitutional as applied. (31) This remarkably narrow opinion adopts an incremental approach characteristic of classical common law. Although a dramatic reversal is always possible, it seems highly unlikely given the Court's current membership. Second, the Justices' exclusive focus on the individual right to abortion, mirrored by scholars, has obscured a critical constitutional issue: the judiciary's acquiescence to Congress's contestable assertion that its ban on partial-birth abortion is a valid exercise of its power to regulate interstate commerce. (32)

Part III argues that Gonzales is part of a broader, decades-long movement that has rendered the process and substance of constitutional decision making almost indistinguishable from simple politics. The most notorious example is Bush v. Gore, (33) in which five conservative Republican Justices reversed a Florida Supreme Court judgment ordering that contested ballots in a presidential election recount be determined by applying the state's statutory "intent of the voter" standard. (34) The majority held that this procedure violated a freshly minted equal protection right to uniform criteria in judging ballots and therefore halted the recount, (35) thereby ensuring the election of a conservative Republican President. Bush v. Gore compromised the credibility of the Justices in the majority, who had previously stressed their commitment to enforcing the Constitution as written, exercising judicial restraint, and deferring to state authorities. (36) Hence, when self-professed "originalists" like...

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