In the near term, the war will continue to be waged primarily in the courts, and, given the recent changes in its composition, the "new" Supreme Court can be expected to be more tolerant of procedural restrictions on abortion. But, for however long it is possible to do so, the Court will avoid directly addressing either Roe itself or the marvelously plastic "undue burden" standard articulated by O'Connor in Casey. This approach has already been used in the Roberts' Court's first abortion decision, Ayotte v. Planned Parenthood, where the Court managed to (unanimously!) reverse a lower court holding that a New Hampshire parental notification law was unconstitutional without ever reaching either Roe or the undue burden standard.
The partial birth abortion case recently accepted by the Supreme Court seems likely to follow the same pattern. The Supreme Court almost certainly did not take this case in order to agree with the three lower appellate court decisions holding the federal partial birth abortion ban to be unconstitutional. But the case does not require reconsideration of either Roe or the undue burden standard. In fact, it could be that the Supreme Court's problem with the lower court decisions has nothing to do with abortion at all.
At issue is a federal statute that is essentially indistinguishable form a state (Nebraska) statute that was struck down in 2000 in a 5-4 decision in Sternberg v. Carhart. The state statute presented a "pure" abortion decision, since the power of the states to regulate abortion is unquestioned except as limited by Roe and Casey. But a federal statute presents an intriguing preliminary question: what gives Congress the power to regulate abortion? The federal act is based on Congress' power to regulate interstate commerce. But, apart from the anomaly of the medical marijuana case, the Court has been increasingly hostile in recent years to claims that the commerce power reaches activities with no discernible actual impact on commerce between the states. In short, what everyone is assuming is an abortion case might well turn out to be a commerce clause case.
Even if the Court does reach the abortion question, though, it is clearly possible for the Court to uphold a partial birth abortion ban without reaching even the undue burden standard, much less Roe itself. After all, the only issue actually presented is one particularly gruesome procedure that is rarely used, that is even more rarely medically necessary, and that is used only in the second trimester or later when the Roe decision itself holds that the state's interests in protecting the unborn are in equipoise with the privacy interests of the mother. Under such circumstances, it would be very easy for the Court to conclude that prohibiting this procedure does not create an "undue burden" on women's privacy interests even if the majority of the Court believes that the undue burden standard, or even Roe itself, is wrong. Given the extreme care with which the Court can be expected to proceed in this most controversial of areas, I find it very hard to believe that it will issue a ruling that is any broader than is absolutely necessary to deciding the case.
Eventually, of course, the Court will be presented with a case that makes it impossible to avoid Roe. At present, the South Dakota statute seems likely to present this case, but even if not, a state statute barring essentially all abortions will inevitably come before the Court. When that occurs, I think the abortion foes are likely to be severely disappointed, perhaps even entirely disillusioned. It is easy to be doctrinaire on this issue when you are not on the Court. It is even easy to be doctrinaire when you are on the Court but know that your vote doesn't really matter since you are in the minority. But when it comes right down to it, I do not believe there will ever be five Justices who are willing to allow states to entirely abrogate a right that has become so deeply enmeshed in American law, that is in in its general outlines supported by a large majority of the American people, and that provides thousands of women each year with a choice other than that between bearing unwanted children and back-alley abortions.
Once that happens, and perhaps even before, I think both sides will come to understand that the legal issue is actually getting in the way. "Abortions should be legal, safe and rare," quoth Hillary. We may never get to the point of consensus on the first of these points, but even the Right would agree that, if there are to be abortions they should be safe and even the most ardent Leftist would agree that we should do whatever we can to minimize the number of abortions that occur.
In a NYT Op-Ed piece published last month, William Saletan eloquently presented the pro-choice case for this approach. Portions of this are reproduced below:
How to accomplish this -- how to reduce or eliminate the number of abortions by reducing or eliminating the number of unplanned pregnancies -- will itself be contentious, with the Right arguing for "abstinence only" and the Left arguing that the only answer is contraception. But that debate, at least, will be over the tactics as to how best to pursue a common goal -- a debate that would be far less corrosive than the one we are having today.EVERY year, on the anniversary of Roe v. Wade, pro-lifers add up the fetuses killed since Roe and pray for the outlawing of abortion. And every year, pro-choicers fret that we're one Supreme Court justice away from losing ''the right to choose.'' One side is so afraid of freedom it won't trust women to do the right thing. The other side is so afraid of morality it won't name the procedure we're talking about.
It's time to shake up this debate. It's time for the abortion-rights movement to declare war on abortion.
* * * *
The [Left's] problem is abortion -- the word that's missing from all the checks you've written to Planned Parenthood, Naral Pro-Choice America, the Center for Reproductive Rights and the National Organization for Women. Fetal pictures propelled the Partial-Birth Abortion Ban Act and the Unborn Victims of Violence Act through Congress. And most Americans supported both bills, because they agree with your opponents about the simplest thing: It's bad to kill a fetus.
They're right. It is bad. I know many women who decided, in the face of unintended pregnancy, that abortion was less bad than the alternatives. But I've never met a woman who wouldn't rather have avoided the pregnancy in the first place.
The lesson of those decades is that you can't eliminate the moral question by ignoring it. To eliminate it, you have to agree on it: Abortion is bad, and the ideal number of abortions is zero.* * * *
A year ago, Senator Hillary Clinton marked Roe's anniversary by reminding family planning advocates that abortion ''represents a sad, even tragic choice to many, many women.'' Some people in the audience are reported to have gasped or shaken their heads during her speech. Perhaps they thought she had said too much.
The truth is, she didn't say enough. What we need is an explicit pro-choice war on the abortion rate, coupled with a political message that anyone who stands in the way, yammering about chastity or a ''culture of life,'' is not just anti-choice, but pro-abortion.
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