When President Bush nominated Judge Samuel Alito to succeed Justice Sandra Day O’Connor on the Supreme Court, it was widely expected that the first clear demonstration of an important shift in the Court’s ideology would be its reversal of one of its recent abortion decisions. In 2000, O’Connor provided the swing vote in the Court’s 5–4 Stenberg v. Carhart decision striking down a Nebraska statute that outlawed the procedure pejoratively described as “partial-birth abortion.” Congress, dominated by conservative Republicans, then passed in 2003 essentially the same statute in order to provoke another test and, as expected, Alito’s replacing O’Connor made the difference.
Last month the Court declared that the federal statute—the so-called Partial-Birth Abortion Ban Act—is constitutional in another 5–4 decision, Gonzales v. Carhart. The act outlaws a procedure that is used in only a very small fraction of abortions and some commentators have suggested that the new decision, though regrettable for some women, makes little overall difference. But the decision is nevertheless worrying, not just because it confirms the Court’s expected ideological shift but also because the awkward opinion that Justice Anthony Kennedy wrote on behalf of himself and the four more conservative justices offers novel and dangerous justifications for regulating abortion, and these could provide the basis for much-further-reaching constraints in the future.
The medical procedures at issue in the case are gruesome—to some people, revolting—but it is necessary to describe them. Between 85 and 90 percent of all abortions are performed during the first trimester of pregnancy, almost all through vacuum aspiration of fetal tissue. When abortion is performed after the beginning of the second trimester, however, that method is no longer feasible, and doctors use what is called dilation and evacuation (D&E). The fetus is killed in the womb, then dismembered as it is extracted, part by part, through the dilated cervix into the vagina.
Some doctors—it is not known how many—use a variant of that method that has been called “intact D&E” (or sometimes “D&X”—dilation and extraction). In that variant, a portion of the fetus—generally its legs—is extracted through the dilated cervix and the fetus is then killed by piercing the cranium that remains inside the womb, extracting its contents, and crushing it, so that the dead fetus can be brought into the vagina intact. The act makes it a crime, punishable by a jail sentence, for a doctor intentionally to perform an intact D&E, though it does not ban the standard D&E. It provides an exception when the intact method is necessary to save the mother’s life. But it does not provide any exception for a physician who uses the intact method because he believes, as many doctors do, that the standard method poses a greater risk to the mother’s health.
The Supreme Court’s abortion jurisprudence is now dominated not by its famous 1973 decision in Roe …