Charles Fried on Gonzales v. Carhart

In his op-ed piece, Supreme Confusion, in yesterday's New York Times, Charles Fried criticizes Justice Kennedy's opinion in Gonzales v. Carhart, although the outcome could not have been surprising to a man who supported the nominations of Chief Justice Roberts and Justice Alito.  Among Fried's concerns about the Court's reasoning:

The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).

It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.

It’s also disturbing because Justice Kennedy was not quite willing to embrace his own conclusion. He suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all. What can that mean? The very complaint here was that the ban was unconstitutional because it applies in just such situations. Does the court contemplate a surgeon pausing in the midst of an operation in which he determines the banned procedure might be less risky, and seeking a court order?

I wholeheartedly agree with the third point.  On the first, though, it's odd that Fried would compare Congress's extensive and thorough factfinding on the Violence Against Women Act with Congress's politically motivated conclusions that the intact D&E method of abortion is never medically necessary.  As the plaintiffs in Gonzales v. Carhart and Planned Parenthood v. Carhart argued, those conclusions did not reasonably reflect the evidence in the congressional record.  Moreover, the Court purported not to "place dispositive weight" on those findings, in fact conceding that some of the findings were incorrect.  The opinion thus is even more dishonest than Fried suggests.  It purports not to defer to the congressional findings, and yet it also ignores the factual findings of the trial courts without ever concluding that these are clearly erroneous.  Apparently, Justice Kennedy simply followed his personal proclivities.

I also don't see the second point reflected in the opinion.  Although the Court does require only a "rational basis" for the legislation, it does not purport to do so "because Congress was acting under its power to regulate interstate commerce."  Indeed, as Justice Thomas's concurring opinion makes clear, the Court did not address whether the federal ban was a proper exercise of Congress's Commerce Clause power.  In the passage to which Fried refers (on page 28 of the opinion), the Court is referring to governmental power -- whether state or federal -- to regulate abortion without running afoul of the constitutional right to privacy.  What is alarming about that passage is how close it comes to bringing abortion restrictions down to rational basis review, the lowest level of constitutional scrutiny.  The Court still purports to employ the "undue burden" standard, but in the context of this opinion it is not clear that this means anything short of a total ban on abortions.  See more at this post.