Supreme Court Showdown
The tension inside the Supreme Court of the United States hearing room yesterday was palpable as President Bushs Solicitor General Paul Clement battled lawyers from Planned Parenthood concerning the constitutionality of Congresss ban on partial-birth abortion. Congress passed the ban on partial-birth abortion in 2003 to prohibit, as Paul Clement stated, a particularly gruesome procedure that blurred the line between abortion and infanticide. Justice Ginsburg pressed Paul Clement on the infanticide issue, saying that since fetal demise could take place through other abortion procedures, then the case was not about infanticide. Clement strongly disagreed, urging that the Court not trivialize Congresss concern about fetal life.
When pressed again by Justice Ginsburg regarding what she perceived as a mischaracterization of infanticide, Solicitor General Clement responded by drawing a significant and compelling analysis. Clement asserted that procedures inside the uterus were abortions under the Supreme Courts abortion jurisprudence. He went further to state, however, that once the child emerges from the uterus and is outside the womans body, I think wed call that murder.
As Solicitor General Clement continued to press that Congress had made a judgment that a particular gruesome procedure regarding abortion should be banned, he met some resistance from Justices Stevens and Breyer. This was no surprise since these Justices were in the majority in the 2000 Stenberg decision which struck down Nebraskas ban on partial-birth abortion.
All eyes in the courtroom focused on Justice Kennedy. At the outset, Justice Kennedy appeared to categorically reject the notion that the U.S. Constitution gave authority to those who perform abortion the right to utilize any procedure that they wanted to, as if Congress had no role to play in the process. I believe that Justice Kennedys analysis will prevail and prove to be the critical vote in favor of the Supreme Courts final determination that the Partial-Birth Abortion Ban Act of 2003 is constitutional. Justice Kennedy issued the strongest dissent in the previous partial-birth abortion case and repeatedly suggested that those performing abortion should not simply be given a free reign to do whatever they pleased.
Lawyers for Planned Parenthood pressed the point that the partial-birth abortion procedure was medically necessary because it was safer. Justice Kennedy repeatedly pressed for statistical data backing up this assertion. In the end, the Planned Parenthood lawyer conceded that no statistical evidence on safety was in the record or established in this case. Tellingly, Justice Kennedy noted that this particular abortion procedure was purely elective and not medically necessary. That appears to be the key in this case.
The outcome in this case is significant for two reasons. First, Congress did elect to prohibit an act that many, including Justices of the Supreme Court, consider to be infanticide. In Justice Kennedys dissent in the Stenberg case, he wrote specifically about this: The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life. Secondly, this will be the first indication of how the Roberts Court views a substantive abortion procedure. The analysis that the Court utilizes in this particular case could well have ramifications for other cases on this significant issue. While the Justices will vote on the case on Friday, we will not know of the decision until sometime next year.