Gonzales v. Carhart: The Status of the Right to Abortion

What status does a woman's right to an abortion have after Gonzales v. Carhart?  Under Roe v. Wade, the right was considered fundamental, and any restrictions imposing on the right were subject to the most stringent constitutional review, known as "strict scrutiny." In Planned Parenthood v. Casey, the three-Justice plurality declined to call the right "fundamental," although it still purported to require that the state offer a "compelling interest" to justify any restrictions on the right. Because the Court there considered the state's interest in potential life to be "compelling" even before viability, however, Casey opened the door to regulation that would have been impermissible under Roe. Moreover, the Court instituted the abortion-specific "undue burden" standard for pre-viability restrictions, a test which clearly was intended to be less protective than strict scrutiny. (For more on the evolution of the right to abortion from Roe to Casey, and then to Stenberg v. Carhart, see my article, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart.)

In Gonzales v. Carhart, the Court pays lip service to the "undue burden" standard, but it seems to demote the right to the lowest level, granting only "rational basis" review to abortion restrictions. The "undue burden" standard now plays a vague sort of supporting role, perhaps at this point signifying only a total ban, although the Court doesn't offer any helpful elaboration. Thus, the Court declared (emphasis added):

Where [the government] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and subsitute others, all in furtherance of its legitimate interests in regulating the medical profession....

This apparent demotion of the right is even more chilling where the Court discusses, and sanctions, increased medical risk to the woman in favor of nebulous state interests that have nothing to do with preserving the life of any fetus. The Court asserts (emphasis added):

Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them, and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations.

Here the Court's euphemisms disguise the import of its conclusion. What it describes as "convenience" is in fact reams of medical evidence in the state and federal challenges and before Congress showing the safety advantages of the banned methods. "Different risks" means that some procedures (the permitted ones) carry more risk and some (the banned ones) less. The Court tosses these differences off as insignificant. It is willing to sacrifice documented increases to women's safety for the sake of legislation that will not, and does not even purport to, save a single fetal life.

Where the Court intends to go with this demotion of the right is unclear to me. Since only Justices Thomas and Scalia felt compelled to express, ever so briefly in Thomas's concurring opinion, their disagreement with the right to abortion itself (and even they joined Justice Kennedy's opinion), it seems the majority is content for now with pretending that a constitutional right exists, while whittling it down to almost nothing.

Ultimately, though, they are postponing the real question. If it is "rational" to ban safety-enhancing procedures in order to protect the state's "legitimate interest" in the "integrity and ethics of the medical profession," and if the interest in preserving the life of a fetus is not only legitimate but compelling, why would the Court allow this ban but invalidate a total ban that actually furthers that compelling interest? What is it about the right to abortion that the Court now thinks is worth protecting? As I will address further in a separate post, there is not one word in the majority opinion that acknowledges the importance of any right on the woman's part at all, save perhaps a woman's right to be a mother.