Oral arguments in the abortion cases

In the midst of all the heady post-election developments yesterday, the Supreme Court heard oral argument in two cases presenting challenges to the federal "partial birth abortion" statute. (Argument transcripts available here.) These are the first abortion cases to come before the Court since the arrival of the new Chief Justice and Justice Alito, and many observers (including me) have been expecting that the Court will uphold the statute. In 2000, the Court in Stenberg v. Carhart struck down a similar Nebraska statute by a vote of 5-4, with Justice O'Connor in the majority. Now that she has been replaced by Justice Alito, crude nose-counting suggests that the federal statute might now fare better. Moreover, defenders of the federal law have stressed two points that arguably distinguish it from the Nebraska law, so that the Court could uphold the federal statute without actually overruling Carhart: (1) the federal law is arguably clearer about which abortion procedures it prohibits and which it permits, thus avoiding the vagueness problems that plagued the Nebraska law; and (2) the federal law contains a congressional finding that the abortion procedure in question, known as D&X, is never necessary to protect the health of the woman, and thus it arguably does not contravene Carhart's holding that a law is unconstitutional to the extent it prohibits a particular abortion method even when that method is necessary to safeguard the health of the mother.

With that lengthy introduction out of the way, I want to offer two reactions to the arguments. First, Justice Kennedy -- who asked a lot of questions and clearly had spent a lot of time pouring over the huge record in each case -- seemed to be surprisingly open to arguments against the federal law. He was one of the dissenters in Carhart, and many of us have assumed that he would therefore find no problem with the federal law. (Hence the prediction that the replacement of Justice O'Connor with Justice Alito would be outcome-determinative.) Now I'm less sure. Granted, predicting a Justice's vote based on oral argument is a perilous business, but given yesterday's arguments I wouldn't be all that surprised if Justice Kennedy voted to strike down the federal law. (On the other hand, I also wouldn't be all that surprised if he ultimately adhered to his Carhart position.)

Second, I was fascinated by a colloquy in the first case between Justice Breyer and Solicitor General Paul Clement. It concerned Congress's finding that it is never necessary to employ D&X to protect the health of the woman. I myself have always thought this finding a bit puzzling. In a context like this, is it really possible to say that the procedure is never necessary to achieve a particular end, as opposed to saying, e.g., that it is unlikely, or that certain experts have not yet seen a case where D&X was necessary? Justice Breyer was evidently also intrigued by this finding. It's his proposed solution that I find especially interesting. Noting that the record in Carhart had contained statements by doctors that D&X sometimes is necessary to protect the woman's health, Justice Breyer asked General Clement why the Court shouldn't permit enforcement of the law except in cases where it could be shown that D&X is necessary for those purposes. As Justice Breyer put it, if in a given case Congress turns out to be right about D&X's non-necessity, then the law could be enforced. But if Congress is shown to be wrong on that point, then the law could not be enforced. Why not take this approach, he asked?

This might be an attractive solution to an uber-pragmatist like Justice Breyer, but the formalist in me is inclined to think the Court may not be able to do it. The law before the Court contains a ban on the use of a certain abortion procedure and also contains a finding by Congress that confirms its intention not to recognize an exception for the health of the woman. Justice Breyer is proposing that the Court nevertheless carve out an exception for cases where it can be shown that the procedure is necessary to protect the woman's health. In essence, he is proposing that the ban on D&X in cases where it isn't necessary to protect maternal health be severed from the ban in cases where it is necessary for those purposes, and that the statute be struck down only in the latter set of cases. I haven't gone back to check the statute to see whether it contains a severability clause that would permit this sort of move, but assuming it doesn't, I'm inclined to think Justice Breyer's approach would entail way too much rewriting of the statute. It would carve up a general prohibition in the absence of anything in the statute recognizing the distinction. Among other things, this would invite case-by-case litigation on a point (necessity to protect maternal health) that Congress evidently meant to take off the table altogether. I think this changes the legislation too much. If the statute's lack of an exception for maternal health poses a constitutional problem -- and I think it does -- I'm inclined to think the whole statute must fall.