Tuesday, May 1, 2007
Benjamin Wittes, in Winner Takes Some (New Republic (4/30)), favors the Court's apparent new requirement that all challenges to abortion restrictions be brought in the form of as-applied suits. He states:
The advantage to the Court's new posture is that it stands to make abortion fights less binary. Instead of a winner-takes-all approach to abortion laws, the Court's new approach imagines breaking up the cookie: Pro-choicers get to block those applications of a statute that they can plausibly claim violate the Constitution; pro-lifers get to keep the rest of the law. Such a judicial posture certainly won't deflate the abortion controversy, but it could let some of the air out of the balloon. In a hot-button area like abortion, there is much to be said for the Court's not throwing out more law than it needs to.
While I'm delighted to see more attention being paid to this important but under-discussed aspect of the Court's decision, I disagree strongly with Wittes's conclusion.
It is highly misleading to characterize as "winner-takes-all" the Court's prior approach, which invalidated abortion restrictions across the board if they lacked a health exception. Certainly the pro-choice side did not "take all" under this approach. Numerous abortion restrictions, including waiting periods, parental involvement requirements, and strict regulations governing the structure and operation of clinics offering abortion, were upheld under this standard. And the public should not be misled by the anti-choice rhetoric claiming that including a health exception is tantamount having no restriction at all. Abortion restrictions all over this nation are enforced against women on a daily basis because these women fail to meet the requirements of a health exception.
Before Gonzales, anti-choice advocates and legislators knew full well that a health exception was consitutitonally required. Yet they regularly attempted to challenge this requirement by enacting laws lacking such exceptions. The Court was right to issue facial invalidations in such cases. As-applied challenges to criminal abortion restrictions have always been more of a theoretical solution than a practical remedy.
Indeed, it is unclear what Kennedy contemplates by such challenges. If a doctor is faced with a woman whose health is at risk, must he or she receive advance permission from a court in order safely to evade criminal prohibitions that would further increase the health risks to the woman? What happens in an emergency situation where this would pose unacceptable delays?
Perhaps Justice Kennedy envisions not that a doctor must consult a court in the throes of a medical emergency, but rather that a pre-enforcement challenge could be brought claiming the ban is invalid in certain, limited circumstances. As Justice Ginsburg pointed out, however, the Court was confronted with reams of such evidence in Gonzales v. Carhart, evidence amassed through the course of years of congressional testimony as well as litigation on state "partial-birth abortion" bans and the federal ban. Had it wanted to, the Court could have issued precisely the kind of narrow remedy it prefers, upholding the ban as applied to most circumstances but allowing the banned procedures in specified cases. It is hard to envision how a pre-enforcement, as-applied challenge could present any new issues to the Court that would lead it to rule more sympathetically to women with compromised health.
Finally, it bears noting that Kennedy's opinion was sufficiently dismissive when discussing women's health that it is not clear what kind of showing, if any, in some theoretical as-applied challenge would suffice to render the ban unconstitutional on the grounds that it posed health risks in that particular circumstance.
Far from presenting the kind of "win-win" solution Wittes suggests, this aspect of the Court's opinion is one of the most troubling.