Sunday, May 06, 2007

Gonzales v. Carhart and Vasectomies

A friend posed the following question to me: Under the Supreme Court's recent ruling in Gonzales v. Carhart, could a law banning vasectomies be upheld on the ground that a vasectomy is never necessary? Great question, friend. Were I teaching constitutional law this semester, I'd pose it on my exam for my students. But because I'm teaching federal courts instead, I'll take a crack at it here.

Before Gonzales v. Carhart, I would have said something like this: A law banning vasectomies pretty clearly infringes the Griswold right to decide whether to procreate. It's true, of course, that there are other ways men can have sex with fertile women without incurring a large risk of fatherhood. They can use condoms or they can require their sexual partners to use some other form of birth control. But to borrow from another area of constitutional law in which the Court applies strict scrutiny, namely the First Amendment, the availability of alternatives does not render the particular prohibition valid, unless it itself satisfied strict scrutiny. And pretty clearly this law wouldn't. It's hard to come up with even a legitimate reason for the law, much less a compelling one. (More on this point below.)

Whether Gonzales v. Carhart changes this analysis is unclear but I think probably not. I wrote in a 1996 article in the Harvard Law Review that the PP v. Casey undue burden standard is best understood as an application of the strict scrutiny standard to the unusual context of abortion, rather than the repudiation of strict scrutiny. I think I was right at the time, but I no longer believe this is a tenable interpretation of Kennedy's view of the undue burden standard in Gonzales v. Carhart. For him, the standard seems to mandate the following inquiry: Has the state completely banned a category of pre-viability abortions? If not, then a regulation falling short of a ban will be upheld so long as it is reasonable, and at least in the context of a facial challenge where there is even arguably conflicting expert evidence, the Court will defer to legislative judgments that regulate abortion in the interest of expressing respect for the life of the unborn.

So why do I say that this doesn't affect the analysis of the vasectomy case? Although there is language in Gonzales v. Carhart that purports to apply general principles, the case is best understood, I think, as limited to a context in which strict scrutiny does not apply. This is clearest when we evaluate the Court's analysis of the government interest. Even though the Partial Birth Abortion Ban Act will not save a single fetal life, and even though it may put some number of women's health at risk, the Court finds that the government interests in maintaining the line between abortion and infanticide, in the integrity of the medical profession, and in protecting women against later regret (even absent evidence of such a phenomenon) suffice to take the Court to the second step of its analysis, whether the law imposes a substantial obstacle to abortion.

Accordingly, unless the Court meant to do away with strict scrutiny for previously recognized fundamental rights other than abortion, the anti-vasectomy law would have to be subject to strict scrutiny, which it would undoubtedly fail. I can't give this answer with 100% confidence, however, because there is some evidence that the Court is in the process of axing the general proposition that infringements on fundamental rights lead to strict scrutiny. Notably, Lawrence v. Texas (Justice Kennedy again!) strikes down the Texas anti-sodomy law without ever saying that same-sex sexual intimacy is, or is encompassed within, a fundamental right, and does not even purport to apply heightened scrutiny of any sort.

Thus, there is at least a non-frivolous argument that mere rational basis scrutiny applies to the anti-vasectomy law. Is there a rational basis for it? Sure. Perhaps it aims to increase the population. Or perhaps it's meant to slow the spread of STD's: men with vasectomies are less likely to use condoms than men without (or at least a rational legislature could so conclude). Under the traditionally toothless rational basis test, either interest suffices.

Nonetheless, I'd bet a lot of money against this outcome, because it's hard to see how Griswold survives if this argument works. It's true that the Connecticut law in Griswold banned all contraceptive drugs and devices, but nothing in the Court's analysis of the case seemed to turn on that fact. Had the state just banned condoms or the pill, it's hard to imagine a different outcome.

Maybe a harder case would be presented if the state offered a health justification for the ban. E.g., a ban on IUDs based on FDA studies showing that they lead to toxic shock would probably survive even if there was some dispute about the medical evidence on which the FDA relied. Likewise, conventional birth control pills might be banned on the ground that some studies show they lead to an increased risk of breast cancer. But in these cases, I have a hard time imagining the Court applying as deferential a test as it applied in Gonzales v. Carhart. At the very least, even if it would apply a deferential test, that would have to be because the government came in with a claim that the banned device or procedure itself posed health risks. It would not be enough to say, as the Court says in Gonzales v. Carhart, that the procedure can be banned because there are other safe methods. Likewise for vasectomies.



Benjam said...

It seems to me that there is a crucial distinction between the Carhart analysis and the hypothetical vasectomy ban. Although largely unstated, the Court is in some manner balancing the interests of the unborn. Granted it is an odd form of interest-- the interest to be killed BEFORE delivery-- but it must be a driving force behind kennedy's obviously strained opinion.

No doubt, congress could ban a particular form of birth control without runing afoul of Griswold, but the interesting question to legal scholars would be, "What level of scrutiny/deference will be applied to a ban of a singular birth control method, when other methods are available?"

Perhaps if Roe is eventually overturned, the next political movement from the right will be aimed at protecting the rights of individual sperm cells. That opens up potential bans on condoms, masturbation, and sexual relations with infertile women.

In the meantime, I would bet that the reasoning of Carhart will not be repeated once the composition of the court has changed. I have little doubt that kennedy was the only justice who agreed with the reasoning, and that the other eight had fundamental (albeit different) disagreements with it. Such is the unusual nature of opinions where 8 justices are highly polarized, 4 against 4. That leaves the median (swing) justice with broad latitude to write an opinion which displeases everyone but still captures 5 votes.

I am quite looking forward to a new topic of discussion. This one is rather painful for me.

Adam P. said...

How much of this depends on the definition of life?
The state has an interest in Carhart because of fetal life. If sperm are live, the state has the same interest. But I believe that even fairly conservative folks consider life beginning at fertilization, not the individual egg/sperm.

Sobek said...

I don't think Gonzalez applies to a vasectomy ban for two reasons. First, Kennedy relied on the government's asserted interest in protecting fetal life. There's no such interest in the case of a vasectomy. It is true that a vesactomy is never medically necessary, but neither is a boob job, or a tummy tuck, or even braces -- none of which involve any fetal interest.

(Personally, I think state bans on all of those things are constitutionally permissible, with the remedy for such legislative stupidity resting with the voters, not five of nine old guys in Washington solving peoples' problems for them, but whatever).

Second, Kennedy repeatedly and emphatically states that Gonzales is limited to an extremely narrow set of facts. He reads the statute as narrowly as possible (by no means an unreasonable reading, BTW), and then allows the ban under those extremely narrow circumstances.

Kennedy is, essentially, the gate holding back the flood. There is no doubt in my mind that Kennedy could have simply reversed Roe outright if he wanted, but he didn't, and that speaks volumes about the scope of future applications of this case.

Unknown said...

Prof. Dorf,
I am interested in how you would state Gonzales' rule. If, for example, I described Stenberg's holding as:

"So long as substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," the Constitution "requires the statute to include a health exception when the procedure is 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.' ---

how would you frame Gonzales' rule (i.e. how does it differ from Stenberg/Casey's rule)

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