I do love Dahlia Lithwick so. She’s got her usual good commentary upon today’s oral arguments on the so-called federal partial birth abortion ban. Apparently, it was interesting, although not for all of the reasons one might expect: In more dramatic moments in the court today, a spectator had to be forcibly removed after screaming from the gallery.
There was considerably less drama from Anthony Kennedy, who will be the swing vote in the case. The justices, Kennedy included, seemed far more focused on medical minutiae than on sweeping constitutional issues.
Kennedy does suggest, in his questions, that the government’s notion of women in emergency situations seeking to file individual “as applied” challenges to the statute is unworkable; the abortion must take place within a matter of hours, and judges would require days to get up to speed. He seems to be consistently worried about removing something from a physician’s arsenal that may put either the woman at medical risk or the doctor in peril of liability.
This begs an important question: if Congress is correct and the procedure it describes as a partial birth abortion is never medically necessary, how exactly can an as applied challenge proceed? What would you have to demonstrate to prove that an intact D&X is actually medically indicated in your own case on just a few hour’s notice? It seems as though the government is conceding the possibility that some set of circumstances, somewhere, might be enough to make a constitutional challenge. And that’s a real problem for them as they try and defend Congress’s dubious findings of fact.
Justice Stevens is unimpressed by Congress’s factual findings, some of which he describes as clearly erroneous, particularly the contention that intact D&X is not taught at any medical school, when it is in fact taught at NYU, Columbia, and Yale Medical Schools, among others. Solicitor General Paul Clement is forced to admit he doesn’t know where it’s taught.
But this is the part of Lithwick’s piece that really gets me:
A telling moment occurs toward the end of Gartner’s presentation when she allows herself to emote, to urge that this is a “very personal moral/religious decision” for a woman, often made “for very tragic reasons” over how she “wants her fetus to undergo demise.” She notes that, “Congress has legislated that for a woman.” The chief justice responds with the question: “If a woman can take into account the impact on the fetus” and its suffering, “why is that beyond the scope of things the Congress can take into account?”
Lithwick’s best answer is that it’s because neither judges nor members of Congress are doctors. They really have no way to make an informed judgment about whether a medical procedure is indicated in a given set of circumstances or not. And if you don’t know what you’re talking about, it’s best to shut up.
However, I am really bothered by Roberts’s question, and I’m having a hard time articulating why. Maybe it’s because (to steal my mother’s analogy), the law is a sledge hammer, not a finely tuned instrument. It’s not that Congress can’t consider questions of emotion, personal morality, and possible suffering. It’s that those considerations don’t generalize in a way that makes for good law. Anyone else have anything to add?