John Roberts, centrist?; Partial Solution

by Jeffrey Rosen | December 11, 2006

As always, Democratic candidates in the last election warned thatconservative Supreme Court justices would threaten abortion rights.So it was especially appropriate that, as Democrats werecelebrating their victory on the morning of November 8, the Courtwas hearing oral arguments in two cases that many liberals fearcould signal the beginning of the end for Roe v. Wade. The cases,which concern the federal ban on partial-birth abortion, are similarto a case the Court decided in 2000 involving the constitutionalityof partial- birth abortion bans in 29 states. Justice Sandra DayO'Connor provided a tie- breaking vote for the liberal side in thatruling. Now that she has been replaced by Justice Samuel Alito,pro-choicers worry that the Court may finally get serious aboutundoing Roe.

But the long-predicted Supreme Court Gotterdammerung may not come topass. Last spring, as he approached the end of his first term onthe bench, Chief Justice John Roberts declared that his goal was topromote unanimity and collegiality on the Court, encouraging hiscolleagues to decide cases as narrowly as possible so that liberaland conservative justices could converge on common results. Duringoral arguments in the partial-birth abortion cases this month,Roberts searched openly for a moderate solution that would upholdthe partial-birth abortion ban while construing it narrowly to avoidthe result pro-lifers most hope for and pro-choicers most fear. IfRoberts can persuade his colleagues to embrace this compromise, hewould disappoint liberal and conservative extremists. But thecountry as a whole could breathe a sigh of relief.

Pro-choice activists have long complained that the partial-birthabortion controversy is a wedge issue, exploited by pro-lifers toput them on the defensive. And they're right: While two-thirds ofAmericans support the right to choose abortion early in pregnancy,nearly the same percentage favor a ban on partial-birth abortions,which usually take place later in pregnancy. In this sense, theSupreme Court did the pro-choice side no political favors when itstruck down the state bans on partial-birth abortion in 2000.Congressional Republicans, attempting to milk the issue for all itwas worth, passed a federal ban on partial-birth abortions butrefused to include an exception for cases where the woman's healthwas threatened, which the Court had stressed was constitutionallynecessary. Congress also defined partial-birth abortion so broadlythat the ban might be construed to cover the most common form oflegal abortions performed in the second trimester of pregnancy,known as dilation and evacuation, or D&E. (In this procedure, whichaccounts for 95 percent of second- trimester abortions, the fetusis terminated inside the womb.)

In his questions on November 8, Roberts seemed especially interestedin the possibility that the Court could dodge the hardconstitutional issues in the following way: It could draft an orderthat would prevent the federal abortion law from being applied toD&E abortions, limiting it instead to partial-birth abortions. Thenarrowest definition of partial-birth abortion is known as dilationand extraction, or D&X. In D&X, the live fetus is extracted throughthe cervix feet-first up to the head, its skull is crushed, and itis then delivered intact--a gruesome procedure that bears a strongresemblance to infanticide, since the fetus is killed while most ofit is outside the womb. Only a small percentage of the 1.3 millionabortions performed annually in the United States are D&Eprocedures, but a much smaller fraction--numbering no more thanseveral thousand--are D&X. The problem is that Congress didn'tlimit the federal ban to D&X abortions: It forbade any abortions inwhich the abortion provider "deliberately and intentionallyvaginally delivers a living fetus until, in the case of ahead-first presentation, the entire fetal head is outside the bodyof the mother, or, in the case of breech presentation, any part ofthe fetal trunk past the navel is outside the body of the mother,for the purpose of performing an overt act that the person knowswill kill the partially delivered living fetus."

At the oral arguments on November 8, the two lawyers for thepro-choice groups insisted that the federal definition might coverD&E abortions that inadvertently turn into D&X abortions--forexample, cases where the abortion provider means to dismember thefetus inside the womb but pulls it halfway out in an effort to keepit as intact as possible and finds it is still alive. But Robertsresisted that claim, emphasizing that "sometimes the D&E procedurewill lead to a D&X procedure, but ... the requirement of`deliberately and intentionally' removes those situations from thescope of the statute." Since doctors always know several daysbefore the procedure whether they are trying to perform a D&E orD&X abortion, Roberts suggested, the relevant intention could bemeasured at the beginning of the operation, sparing doctors whostart off trying to perform D&E procedures from being punished whenthose procedures take an unexpected turn. By making clear thatabortions that begin as D&E procedures are exempt from the federalban, the Court would answer pro-choice fears that the partial-birthlaw is the beginning of a slippery slope that could lead to the banof most second-trimester abortions, thereby eviscerating the coreof Roe.

Even if Roberts convinced the Court to construe the federalpartial-birth abortion law to exempt D&E abortions, there stillwould be another problem: The ban contains no exception for caseswhere a partial-birth abortion is necessary to preserve the lifeand health of the mother, which the Court has said isconstitutionally required. There is a dispute about the relativesafety of the D&E and D&X procedures: A peer-reviewed study ofabortions performed over 20 weeks at Weill-Cornell Medical Centerfound that doctors used D&E in 69 percent of cases and D&X in 31percent of cases and that both procedures were comparably safe.Meanwhile, Congress and two district courts found that there was nosituation where the D&X procedure was medically necessary or hadmarginal safety benefits. But one district court found that D&X wassafer in cases involving preeclampsia combined with maternal cancerand placenta previa, and some doctors believe it is safer in othercases as well. The Court could finesse this dispute with anotherjudicial sleight of hand, by simply creating a health exception--inother words, construing the ban not to apply in cases when apartial-birth abortion is necessary to preserve the mother'shealth.

The Court still would have to resolve another hard question, though:Who decides if and when partial-birth abortions are medicallynecessary--should it be individual doctors, lower-court judges, orthe medical profession as a whole? In the oral argument, there wasa dramatic gap between the liberal and conservative justices abouthow broadly to create a health exception. Roberts suggested that amarginal increase in safety wasn't enough to override Congress'sinterest in preventing D&X abortions as long as the D&E procedurewas nearly as safe in most cases. Justice Stephen Breyer, bycontrast, wondered aloud whether the Court might allow D&Xabortions "only where appropriate medical opinion finds itnecessary for the safety or health of the mother." And, in 2000,Breyer wrote for the Court emphasizing that D&X abortions had to beallowed as long as a "significant body of medical opinion" believedthey might be safer for some patients. The Court had previouslysaid the abortion itself had to be necessary for the woman'sphysical or psychological health; Breyer expanded this to say that,if a woman chose an abortion, she was entitled to the safest one inall circumstances.

If Breyer applies the same lax standard in this case, he riskscalling into question his hard-earned reputation as the justicemost deferential to Congress- -since a minority of doctors believethat the D&X procedure is always safer than D&E. Between 1994 and2000, Breyer and Ruth Bader Ginsburg voted to strike down fewerfederal laws than any other justice; and, in his recent book,Active Liberty, Breyer argues that judges should show restraint andmodesty in the face of national disagreement, deferring to thedecisions of elected representatives--especially those inCongress--in order to promote democratic deliberation. There wassomething unseemly about Breyer's announcement that he had askedhis law clerks to tally up the numbers of medical experts whotestified for and against the partial-birth ban at every stage inthe case. He seemed to be allowing his progressive weakness for therule of experts to trump his devotion to judicial deference toCongress. By allowing the federal ban to be enjoined only forspecific categories of medical conditions in which substantialnumbers of doctors believe that D&X abortions are safer than D&Eabortions, Breyer could preserve his record as a principled defenderof judicial restraint.

Breyer is not the only justice who runs the risk of betraying hisprinciples. If Justice Clarence Thomas decides to uphold thepartial-birth abortion ban, abandoning his usual skepticism offederal regulations, he, too, would look opportunistic. By the sametoken, conservative defenders of the ban, such as former AttorneyGeneral Edwin Meese, are urging the Court to construe Congress'spower to regulate interstate commerce very broadly, even thoughthey take the opposite position in cases involving civil rights andenvironmental regulations; liberal groups are similarlyhypocritical.

Can Roberts stop the Court from dividing along party lines? Yes, ifhe can persuade his colleagues to uphold the partial-birth lawwhile preventing it from being applied to D&E abortions or in anysituation in which a D&X abortion is medically necessary. (Even theBush administration conceded in its briefs that this would be adiplomatic way for the Court to avoid the hard constitutionalquestions, although it prefers a ruling that would interpret thelaw in a less compromising fashion.) A narrow decision along theselines would give an important symbolic victory to pro-lifers whileanswering the main policy concerns of pro-choicers. And, byrefusing to overturn the 2000 partial- birth abortion decision, itwould express the respect for previous judicial precedents thatRoberts embraced in his confirmation hearings.

Roberts's hero, Chief Justice John Marshall, convinced a group ofunruly colleagues to converge around narrow, unanimous opinionsthat appeared to give a victory to one side while alsoacknowledging the claims of its bitter opponents. If Robertsfollows Marshall's example and finds a deft compromise in theabortion wars, he will deserve the thanks of a grateful nation. And,if he fails, his vision of a Court that governs best when itgoverns most narrowly will be off to a bumpy start.

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