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A pair of highly contentious cases on abortion rights may offer the most dramatic evidence of the extent to which President George W. Bush’s two appointments are tilting the Supreme Court. There’s a good chance the Court will reverse rulings by two federal courts of appeals that upheld challenges to abortion-rights restrictions. If the anti-abortion forces prevail, they will provide a striking example of the shift in the Court’s center of gravity. In Gonzales v. Carhart and Gonzales v. Planned Parenthood, the U.S. Courts of Appeals for the 8th and 9th circuits, respectively, found the Partial-Birth Abortion Ban Act of 2003 to be unconstitutional. The federal statute makes it illegal for doctors to perform certain kinds of (mainly late-term) abortions and imposes criminal penalties on doctors who do so. The two courts struck down the federal law on the authority of the Supreme Court’s 5-4 decision in Stenberg v. Carhart (2000), in which the Court invalidated a similar Nebraska ban on late-term abortions. Following the reasoning in Stenberg, the lower courts pointed principally to the absence in the 2003 law of any exception to protect the mother’s health. In enacting the anti-abortion legislation, Congress had sought to finesse the Supreme Court’s seemingly inescapable holding in Stenberg that such a health exception is constitutionally required. The statute contains legislative fact-findings purporting to show a medical consensus that the partial birth abortion procedure is never an effective means of protecting the mother’s health. Thus, by definition, concern for the mother’s health is irrelevant to the constitutionality of the act. (If Congress really believed that was true, however, why did the legislators provide an exception to preserve the life of the mother?) The circuit courts acknowledged that usually, the judiciary should defer to legislative fact-findings, especially when Congress is making policy judgments. But under Stenberg, the two courts held, it was settled jurisprudence that the medical community had not reached a consensus that the late-term procedure is never used to protect the mother’s health. And Congress does not have the power, the courts said, to legislate the Supreme Court’s constitutional holding out of existence. Thus the usual deference to fact-findings does not apply in these cases. The Supreme Court, however, seems unlikely to show so little deference to congressional fact-finding on empirical matters. The Court may reason that questions about the existence of a medical consensus are better left to the political branches, which are better suited to resolve such factual issues. DUBIOUS �FACTS’ The two courts were engaged in what, to some, might appear an insufficiently deferential review of congressional fact-finding. In essence, the courts concluded that Congress’ facts lacked substance. In particular, the courts said, Congress had stretched (to put it diplomatically) in proclaiming a consensus on the lack of medical usefulness of partial birth abortion. To the contrary, the courts noted, the professional medical societies were divided on the subject, and at least one, the American College of Obstetricians and Gynecologists, had concluded that the late-term abortion procedure may be appropriate in certain circumstances. It will be no surprise if the question of how far judges can go in weighing congressional fact-finding becomes the pivot of the case. By professing judicial modesty as a ground for accepting the legislative fact-findings in the federal statute, the Supreme Court could uphold the act without engaging the merits of the abortion issue directly. And the Court could do so without purporting to overturn the Stenberg proposition that so long as some body of medical opinion holds out for the procedure, the legislature cannot deny it to an expectant mother without making an exception for her health. Of course, reaching such a limited conclusion would entail a greater commitment of judicial self-restraint than the Supreme Court — or at least the Rehnquist Supreme Court — has been accustomed to showing Congress in recent years. The temptation to make a bigger statement by overturning or somehow distinguishing Stenberg may prove too powerful to resist. The appellate courts also suggested that the federal law, while supplying a definition of sorts for the concept of partial birth abortion, would prove difficult to apply because current medical thinking does not differentiate among the various categories of abortion procedures along the lines that Congress defined. The statute, therefore, would impose an undue burden on the mother’s right of access to the partial birth procedure because the physician, faced with the prospect of criminal prosecution, might hesitate to recommend even an arguably permissible procedure. Linking the undue burden on a prospective mother to a lack of deference to the physician’s exercise of medical judgment hearkens back, in a way, to the original doctor-centric notions of Justice Harry Blackmun’s opinion in Roe v. Wade (1973). Such deference to the judgment of the attending physician also tends to shift the focus away from the gruesome nature of the forms of late-term abortion most likely banned by the federal statute — and thus away from Congress’ purpose in banning these forms of abortion. COUNTING VOTES More than a decade ago three justices subscribed to the extraordinary (and controlling) plurality opinion in Planned Parenthood v. Casey (1992). There they upheld the core of Roe v. Wade in the name of judicial stability and the institutional interest in not rewriting constitutional doctrine every time the high court bench changes personnel. Of those three, Justice Sandra Day O’Connor, who provided the controlling fifth vote in Stenberg, has been replaced with Justice Samuel Alito Jr., who likely will be no fan of partial birth abortions. Justice Anthony Kennedy, who dissented passionately and at length in Stenberg from the striking down of the Nebraska partial birth abortion ban, is unlikely to reverse course and affirm the lower courts’ invalidation of the functionally equivalent federal statute. (Justice David Souter remains aligned with the pro-choice bloc, so far as we know.) The late Chief Justice William Rehnquist tended to side with the pro-life bloc, and there is little reason to suppose that Chief Justice John Roberts Jr. will depart from that pattern. Hence, with O’Connor gone and Kennedy aligning with the pro-life side on these partial birth abortion cases, the two Gonzales decisions look like prime candidates for reversal. A Supreme Court decision upholding the federal statute, with a consequent nip at Roe v. Wade, may mark one in a series of nibbles that over time could reduce Roe to the vanishing point — if Congress doesn’t get there first with a new, broader enactment that effectively overthrows Roe altogether. If Congress does so, it is possible that the Roberts Court would then find a way to distinguish Roe. The impact of a 5-4 Supreme Court decision, this time upholding a federal law that criminalizes certain abortion techniques, could have a profound effect on the abortion debate. At the least, the decision would spur further legislation at the state level, up to and including renewed attacks on Roe itself. On a more practical level, however, we know that late-term abortions of any kind are relatively rare throughout the country. Most women who seek abortions do so earlier in their pregnancies, before the point of viability, and the American Medical Association, among others, has voiced disapproval of late-term abortions. Thus, a federal law that effectively does away with such procedures may not have a significant impact on how individual doctors counsel patients on their medical options. And in the rare case, even the federal late-term-abortion ban would still permit such procedures to protect the life of the mother. THE COMMERCE CLAUSE Given the passionate interest in these cases, it is perhaps surprising that no one seems to have taken up the fundamental question of whether Congress has the constitutional authority to criminalize a physician’s recommendation of a particular course of treatment. The purported source of power to enact the federal partial birth abortion ban, according to the recitals in the bill, is the commerce clause. Once upon a time, that power was believed to be virtually infinite. Not even the farmer growing crops for his own consumption could escape the reach of Congress if it was of a mind to control the farmer’s output for the sake of regulating the national market, as the Court held in Wickard v. Filburn (1942). In recent years, however, the Court has seemed willing to revisit that issue, as in Lopez v. United States (1995), in which the Court invalidated a congressional statute that made it a federal crime to possess firearms near school buildings. For whatever reason, nobody seems disposed to assail the federal legislation on the theory that it exceeds Congress’ power to legislate under the commerce clause. Perhaps all parties in the abortion debate agree that the doctor-patient relationship is sufficiently commercial to come within the reach of Congress. Perhaps the availability of late-term abortion procedures in some states but not in others might induce pregnant women to cross state lines in search of medical treatment. Congress, however, made no such findings in the legislation. Thus the Roberts Court has a variety of options. It might use the cases to make a bold constitutional ruling on the continuing validity of Stenberg. Or the Court might dispose of the cases on the narrower ground of the judicial deference owed to explicit congressional fact findings. The approach the Court chooses will reveal much about how much — or little — has changed with the appointment of two new justices.
Leonard H. Becker is general counsel in the Executive Office of the Mayor of the District of Columbia. The views expressed here are his own and do not necessarily reflect those of the D.C. government.

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