After Gonzales v. Carhart : The Future of Abortion Jurisprudence
On April 18, 2007, the Supreme Court handed down a major ruling on abortion rights, upholding the constitutionality of the federal Partial-Birth Abortion Ban Act. The 5-4 decision in the case, Gonzales v. Carhart, upheld for the first time a law that bans a specific abortion method, and it did so even though the law does not contain an exception for cases that endanger a woman’s health. The decision is likely to prompt new efforts to enact abortion restrictions and thus trigger more litigation. What does the decision portend for the legislatures and for the courts as new restrictions are enacted and challenged, and the cases wend their way up to the Supreme Court?
The Pew Forum on Religion & Public Life invited a distinguished panel of experts to discuss the recent ruling and examine how it may affect abortion jurisprudence and the abortion debate in the future.
Also see a legal backgrounder analyzing the decision.
Eve Gartner, Senior Staff Attorney, Planned Parenthood Federation of America
Marcia Greenberger, Founder and Co-President, National Women’s Law Center
Cathy Cleaver Ruse, Senior Fellow for Legal Studies, Family Research Council
M. Edward Whelan III, President, Ethics and Public Policy Center
Judy Appelbaum, Director of Programs, American Constitution Society
JUDY APPELBAUM: Good afternoon, everyone. My name is Judy Appelbaum, and I am the director of programs at the American Constitution Society. I’ll be serving as the moderator for this discussion. I’m pleased to welcome you all today on behalf of all three sponsoring organizations, the American Constitution Society, The Federalist Society and the Pew Forum on Religion & Public Life.
I’m going to kick things off this afternoon with a bit of background on the Supreme Court decision that brings us here today, Gonzales v. Carhart. Then I’ll introduce our distinguished panelists, and we’ll hear their thoughts on the ramifications of the court’s ruling and its reasoning. Then we’ll open the floor to questions.
The case that was decided by the Supreme Court this past April was one of three challenges to the constitutionality of the law passed by Congress called the Partial-Birth Abortion Ban Act of 2003. The challenges had been successful in all the lower courts, in no small measure because just a few years ago, in Stenberg v. Carhart (2000), the Supreme Court struck down a similar law that had been passed by the state of Nebraska.
In Stenberg, now sometimes referred to as Carhart One, the court held 5-4 that Nebraska’s ban on what it called partial-birth abortion did not pass constitutional muster because the law lacked an exception allowing the procedure when necessary to preserve the woman’s health and because the law actually applied, the court held, to more commonly used abortion procedures as well and thereby placed an undue burden on the right to an abortion. Incidentally, opponents of this legislation object to the term partial-birth abortion on the grounds, they say, that it is not a medical term, and you will likely hear them talk, instead, about a procedure known as intact D&E or dilation and evacuation, which the legislation would ban.
In any event, this year in Gonzales v. Carhart, sometimes referred to as Carhart Two, a new 5-4 majority of the court upheld the federal ban. Justice Anthony Kennedy, who had dissented in Stenberg, wrote for the court, joined by the other Stenberg dissenters, Justices Antonin Scalia and ClarenceThomas, and the newest members of the court, Justice Samuel Alito and Chief Justice John Roberts. The court held that the law is not void for vagueness, that it does not, on its face, place an undue burden on the abortion right because of its breadth, and that the absence of a health exception does not render the law unconstitutional. In a section of the opinion that has drawn a bit of commentary, Justice Kennedy asserted that the abortion ban may be justified in part based on the government’s interest in protecting women from the regret and emotional consequences they may suffer from their abortion decision.
At the same time the court held that although “facial” challenges to the federal ban must fail, cases may still be brought challenging the law as it applies to specific women whose health may be endangered by the congressional prohibition. The decision prompted a strong dissent by Justice Ruth Bader Ginsburg, who was joined by Justices John Paul Stevens, David Souter and Stephen Breyer. Among other things, Justice Ginsburg accused the majority of retreating from its prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, and she pronounced the court’s decision “alarming.”
So we turn now to our four panelists to dissect all of this and help us understand what the decision portends for the future. Is it alarming? And if so, can the abortion rights advocates explain why? For abortion opponents, is it a great victory, as some have declared? Or is it of little consequence, as others on that side insist? We’re fortunate to have a very knowledgeable panel of experts to help sort this out.
First, we will hear from Eve Gartner, who is a senior attorney with the Planned Parenthood Federation of America and who argued in the Supreme Court in Gonzales v. Planned Parenthood, the companion case that was decided along with Gonzales v. Carhart.
Next, we’ll hear from Cathy Cleaver Ruse, who is a senior fellow for legal studies at the Family Research Council and the recipient of several awards as a defender of life.
Third up will be Marcia Greenberger, founder and co-president of the National Women’s Law Center and a leading national authority on reproductive rights and women’s rights generally.
Our last speaker will be Edward Whelan, who is president of the Ethics and Public Policy Center and who writes extensively on the Supreme Court and constitutional law, including for the National Review online.
We’re delighted to have each one of you, and I look forward to a lively discussion. Eve, please get us started. Thank you very much.
EVE GARTNER: Thank you, Judy, and thank you to all of the sponsors for inviting me to participate in this important discussion today. Carhart Two is a radical and troubling departure from the Supreme Court’s prior abortion jurisprudence. There is little doubt that it will have far-reaching consequences for women who have chosen to end their second trimester pregnancies prior to fetal viability, a timeframe in which the Constitution guarantees their right to make that choice. I want to outline briefly four of the multiple ways in which this ruling repudiates previously established law in this area and then discuss the implications for where this court is heading.
First, for the first time since Roe (1973), the court in Carhart Two ruled that an abortion restriction is constitutional despite the lack of a health exception. This ruling is all the more striking because of the extensive evidentiary record showing that the banned abortion method is considered the safest for some women by the American College of Obstetricians and Gynecologists and leading academic OB/GYNs at major medical institutions around the country.
The record before the Supreme Court, which the majority ignored, demonstrated that the intact D&E procedure is not a matter of preference or convenience but minimizes the risk that the woman will experience hemorrhage, septic infection, or the spread of a malignancy in her reproductive organs. In fact, in a recent Washington Post article, the vice president for Focus on the Family admitted that intact D&Es pose less risk of internal bleeding than alternative methods. And yet this procedure, or performing this procedure, is now a federal felony.
Second, Carhart Two also departs from established law by relying on novel and dangerous governmental interests to justify this ban on a safe pre-viability abortion method. The court ruled that Congress can ban intact D&Es based on ethical and moral concerns. But this flies in the face of prior court rulings in which the court held that its obligation is to define the liberty of all, not to mandate its own moral code. Yet now in Carhart Two the ethical and moral preferences of five of the nine justices for how a fetus dies during a pre-viability abortion procedure – a timeframe in which the fetus cannot survive no matter how the abortion is performed – this ethical and moral concern of the five justices trumps the constitutional right of the woman to protect her health and trumps the medical judgment of leading OB/GYNs around the country.
In addition, and as Judy mentioned, in what is plainly the most stunning part of this ruling, the court ruled that a safe abortion technique can be banned in order to protect women from regretting their choice to have that procedure. As Justice Ginsburg wrote in her powerful dissent, this reasoning reflects ancient notions about the woman’s place in the family and under the Constitution. This part of the opinion is also notable because there is absolutely no evidence in the record to support it. In fact, the government never made this argument at any time throughout this litigation. Justice Kennedy even admits that there is, in his words, “no reliable data to support his theory.”
On top of everything else, this part of the opinion is infuriatingly illogical. Even if it were true that some women regret their decision to have an abortion or a specific abortion method, and inevitably that may be true in the sense that all people have the risk of regretting any decision – who they marry, whether to have children, whether not to marry – people do tend to regret decisions, but the obvious solution is to ensure that the woman’s choice is a well-informed one, not to deprive her of that choice altogether.
Although the court does not use the word overturn, there’s no doubt that Carhart Two overturns Carhart One. In Carhart One the court ruled that where there is medical disagreement about whether an abortion procedure is medically necessary, and of course, when it comes to the issue of abortion, there will always be medical disagreement in this country among doctors, but in Carhart One the court said in the face of that medical disagreement if there is substantial medical authority to support the proposition that a banned procedure has safety advantages, then the court’s prior precedents, Roe and Planned Parenthood v. Casey (1992), require a health exception. In short, when there’s any doubt, you err on the side of protecting the woman. The tie goes to the woman.
But the new rule under Carhart Two is just the opposite. Now, when doctors disagree about the medical need for a safe abortion procedure, the courts will just let the legislatures decide. In other words, Congress, not doctors, is now making medical decisions for pregnant women.
Finally, the Carhart ruling overturns Carhart One in yet another way, by severely restricting how abortion regulations may be challenged in court. Carhart Two says that lawsuits claiming a law is unconstitutional because of the lack of a health exception should never be brought as a facial challenge to the law, despite the fact that that was how virtually every lawsuit challenging abortion restrictions since Roe has been brought and the court has never before suggested that facial challenges were an inappropriate way of bringing those challenges.
But now the court says that if there really is a woman who has a serious medical need for an intact D&E abortion, she should just wait until the exact moment of that need, when she may be in fact hemorrhaging, she may be hospitalized due to a systemic infection. But under the new ruling, the woman has to wait until the precise moment of need, and at the moment that she truly needs a health-saving abortion procedure, she should then file a lawsuit in federal court and wait for relief. So as Justice Ginsburg understood, this approach jeopardizes women’s health and places doctors in an untenable position.
So very briefly, what are the implications of these major changes in the court’s abortion jurisprudence? The most immediate and direct result of this ruling is that some women will be deprived of the safest abortion procedure for them. In addition, the new state interests that the court recognized clearly have implications for future rulings. Some people, of course, have moral objections to all abortion procedures. Does that mean that all abortion procedures can be banned? Some women may regret their abortion decision regardless of what method is used. Does that justify a ban on all or a much broader set of abortions? Also, if the moral code of five members of the Supreme Court in 2007 justifies upholding this ban, when the moral code of the 2000 Supreme Court did not justify upholding the Nebraska ban at issue in Stenberg v. Carhart, it’s hard not to fear that constitutional rights will come and go as the court’s composition changes.
As for this new rule that legislatures get to decide where there’s any medical disagreement, it’s hard to know where that goes. Is this an invitation to legislatures to hold sham hearings and write up baseless findings as Congress did here? Will the court defer to disputed facts in other contexts, even if the evidence at trial and even if the great weight and credibility of the witnesses are to the contrary?
And finally, will the court continue as it did in this case to ignore its own longstanding precedents, even if not expressly overturning? It’s notable that at several points throughout this ruling, the Supreme Court expressly refuses to reaffirm its prior precedents, Roe v. Wade or Planned Parenthood v. Casey or even its ruling just last term in Ayotte v. New Hampshire. The court says that it assumes that the principles in those cases are settled. Given the promises of the newly confirmed justices to respect precedent, it’s alarming that they are only willing to assume that previous rulings of the court are binding and not explicitly state as much.
We cannot know how this will play out over the coming years, but there’s no doubt that the new changes in the composition of the court place the constitutional protection for reproductive decision-making at greater risk than any time since Roe. Thank you.
CATHY CLEAVER RUSE: I too thank the groups for inviting me here this morning and for hosting this panel. My comments fall under three headings: the law, the rhetoric and the rest of the story.
The law. The act is straight-forward and narrow. It defines one type of abortion, the type in which a living child is delivered past the point of her navel and then killed by an overt act. According to testimony from abortion doctors in the trials below, the overt act is most often stabbing the baby’s head with a sharp instrument like scissors or crushing it with forceps. The act limits the use of this procedure to circumstances where it is needed to save the mother’s life and prohibits its use in all other circumstances.
The decadelong effort to enact this law was bipartisan and democratic. It passed by overwhelming bipartisan majorities in both the House and the Senate. Sens. Tom Daschle, Harry Reid and Pat Leahy all voted for its passage. It was supported by over 70 percent of the American people, including those who identify themselves as pro-choice, including a majority of women. The fact is Americans are not comfortable with an unlimited legal right to abortion, yet as David Savage of the Los Angeles Times wrote in 2005, Roe v. Wade and Doe v. Bolton (1973) create an “absolute right to abortion” under which “any abortion can be justified.”
Regrettably, the Gonzales decision does not affect the legal status of most abortions, nor does it affect Roe v. Wade. Like the sword of Damocles, Roe continues to hang over the child, threatening to drop at any time throughout all nine months of pregnancy and for any justification. But after Gonzales, at least now it cannot follow her out of the womb, provided she makes it past her navel, and at least not in the case of a facial challenge to the law. Gonzales is significant, though, because it brings America’s law on abortion closer to where Americans’ views are on abortion.
The rhetoric. Terrifying. Frightening. These are some of the words used by the pro-choice crowd, rhetoric that is all out of proportion to what the court actually ruled. But I suspect what’s actually behind these reactions is the court’s acknowledgement in the decision that some women suffer after abortion and the common sense language used in the opinion about babies and abortion and abortion doctors, which happens to be the way the American people talk about these matters.
For example, the court recites an abortion doctor’s clinical description of the partial-birth abortion procedure. Then it goes on to quote a nurse who happened to witness the procedure. She says, “The baby’s little fingers were clasping and unclasping and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startled reaction, like a flinch, like a baby does when he thinks he’s going to fall. The doctor opened the scissors, stuck a high-powered suction tube into the opening and sucked the baby’s brains out. Now the baby went completely limp.” With descriptions like these, in a case that will undoubtedly be studied by every future law student in America, it is no wonder the abortion rights movement considers this decision alarming.
I debated former NARAL President Kate Michelman on National Public Radio the morning after the ruling. She called the law arbitrary for singling out one procedure and explained that “dismemberment abortion” is even more disturbing because “the fetus is literally torn apart.” This from Kate Michelman. As she spoke I thought, here’s why so many people fought so hard for this law and so many people fought so hard against it. It brings the abortion debate to the subject, and that’s the last place the abortion industry wants to be.
Former Planned Parenthood President Gloria Feldt wants to put the cat back in the bag. She is calling on her troops to “reverse the damage” by explaining to the public that “abortion isn’t about abortion. It’s about whether women will have an equal place at life’s table.” Interesting choice of words.
Justice Ginsburg in her dissent seems to agree. She explained that “restrictions” on an abortion “procedure” are not really about restricting an abortion procedure. Instead, they are about depriving women of “equal citizenship stature.” So, according to Ginsburg, my stature as an equal citizen depends upon an abortion doctor being able to stab my baby’s head with scissors rather than dismember her. That’s an outrageous, eccentric proposition, and it deserves nothing but ridicule.
Finally, the rest of the story. The Gonzales decision, regrettably, does not give broad new avenues for legislation in the abortion context. Certainly one avenue is clear: states can and should pass state partial-birth abortion laws in the model of the federal law. Why is this important? Because states need to have the ability to enforce the law without having to rely on the feds to do it, especially under a Hillary Clinton administration, or for that matter, under the administration of any of the Democratic candidates, each of whom came out swinging after the ruling, showing how radically out of step they are with the American people.
Beyond that, we can look to the legitimate state interests discussed by the court: promoting fetal life, protecting the integrity of the medical profession and ensuring that the abortion choice is informed. Would the court uphold bans on other late-term abortions? It seems clear that it would not, given that the partial-birth abortion law was upheld in part because of the availability of other methods of abortion. The abortion industry is notoriously under-regulated. Animal hospitals and beauty salons are better regulated than some abortion clinics. Would the court uphold measures requiring greater accountability? It should. But of course we can’t know. Do women deserve full, factual information before having an abortion? The court reaffirmed the state’s legitimate interest here, and I think the clear implication of the ruling is that some greater measure of accountability would be upheld. But again, we can’t know for sure.
I want to say a word about Justice Ginsburg’s criticism of the court on the issue of women. Her criticism is profoundly dishonest. She finds greatly offensive the proposition that some women regret their abortions. It may well offend Justice Ginsburg, but in fact, it happens to be true. Ginsburg mentions observable reality. I’ve observed hundreds of women standing behind signs that say, I regret my abortion, or my abortion hurt me. What’s more, the most comprehensive long-term study to date, from a pro-choice researcher, no less, in New Zealand, shows that women experience elevated rates of depression and other mental problems from abortion unrelated to any pre-pregnancy condition.
Is it an ancient notion that states should be concerned that abortion doctors might be withholding information from women? The trials below have evidence that show that’s exactly what has happened in partial-birth abortion. What about women’s “fragile emotional state while pregnant?” Those aren’t the court’s words – that’s Ginsburg. Ginsburg, in fact, repeatedly ignores what the court itself says and instead cites outdated rhetoric from 19th century cases, imputes that rhetoric to the court and then expresses outrage. That’s dishonest.
Finally, I’ll say that my colleague Ed will say more about pre-enforcement, “as-applied” challenges as they relate to claims about women’s health, but I’d just like to make the final point that the argument for a health exception is purely a legal tactic that has no basis in medical fact. According to me? No. According to the American Medical Association, according to abortion doctors who were not part of this lawsuit, such as Anthony Levatino, such as the doctor credited with developing the procedure, Martin Haskell. Even the task force of the American College of Obstetricians and Gynecologists in one of its more candid moments admitted that it could not find any medical benefit for this procedure. In short, there is no good reason for partial-birth abortion. Thank you.
MARCIA GREENBERGER: I want to pick up on some of Cathy’s remarks and start mine with Ruth Bader Ginsburg as well, but it won’t surprise you to know that I interpret them very differently than she did. Ruth Bader Ginsburg has not, in the past, been one of those justices who will read her dissent from the bench. Let me step back for a second and explain why I’m starting from that point. Normally, when the Supreme Court issues a decision, the author of the majority opinion orally describes in the court the essence of the opinion. It is unusual for a justice who authors a dissent to verbally describe the dissent at the point the case is decided.
In this Carhart Two case, Ruth Bader Ginsburg, who had followed the practice of generally not articulating her dissent from the bench, departed from that practice, and in a signal of how alarming she found the majority decision to be, she did read the essence of her dissent. She did it again, and when she did it a second time, more recently in the Ledbetter decision, several court watchers and commentators made a point of how unusual it was for her to do this, let alone twice in such a short period of time.
Obviously the Carhart decision, which is the subject of the discussion today, addresses a core constitutional right established for women in Roe v. Wade in 1973 that extends a basic right to privacy and an ability for women not to be forced to be pregnant, extending that bodily integrity right to privacy to women in a reproductive area that only they can experience. That has been one of the fundamental principles of women’s constitutional rights in this country.
The Ledbetter decision, which drew a second oral dissent from Justice Ginsburg, dealt with the core statutory right of equal pay, where the same 5-4 majority cut back on women’s ability to combat equal pay discrimination. Those pillars strike at the very heart of women’s autonomy, integrity, ability to be full citizens in this country. Rather than being dishonest or somehow going back to the old days of paternalism, as I think Cathy said was the case in Ruth Bader Ginsburg’s dissent, the kind of reasoning that we saw in Carhart was exactly parallel to the reasoning that we’re beginning to see played out as women’s long-established rights – rights to bodily integrity and privacy, ability to protect their own health – are unraveling, and now we see that played out again in the workplace, and that is a cause of enormous alarm. Justice Ginsburg, the sole woman on the Supreme Court, wrote the dissents in each of those cases. She sounded the alarm, but all in American need to hear it.
I want to talk a little bit about some of the principles that have been articulated about the Carhart decision. First of all, when we look at some of the reasoning in the majority decision, the court talked about it being appropriate for a state simply to come up with a rational basis for imposing a barrier to women’s access to terminate a pregnancy in the absence, it said, of an undue burden. Rational basis is a legal term that has had meaning for numerous cases over the years. The court normally applies what’s called a rational basis test to uphold any state distinction, as long as the government can come up with some rational basis, including a post hoc rational justification or rationalization for any distinction. It was the rational basis test that allowed the Supreme Court to uphold government laws that restricted women’s ability to practice law or to serve on juries or kept them subservient to their husbands. Any post hoc rationalization would do.
What was so key for women was when their constitutional rights were declared by the Supreme Court to require a higher standard of review than rational basis. So when we see the term rational basis being used by five justices on the Supreme Court, you can be sure it’s alarming, and no one understands that better than Ruth Bader Ginsburg, who argued before the Supreme Court as a private practitioner about how the rational basis test had done such a disservice to women, and in fact, to men and to their families in the history of this country. So those were chilling words that we saw applied to women’s fundamental privacy right in this area.
What was even more distressing was that the court was not accepting here a rational post hoc basis for upholding this ban alone. What the court was doing was coming up with its own post hoc rationalization in the absence of any facts, or as Eve said, even with respect to the government’s presenting an argument about trying to protect women. This was something that the court developed on its own – an extraordinary departure.
When we talk about paternalism and look at past cases where courts were protecting women from holding jobs that required overtime, required heavy lifting – of course unless they were a nurse, where somehow those kinds of weight-lifting rules were waived. Women were being protected out of their rights, their ability to support themselves, so this concern for protecting women, we’ve learned from history time and again, is something that women need to say no thanks to.
I want to say a couple other very quick things. First of all, I want to underscore something about this law. We often hear that women and men shouldn’t be concerned if Roe v. Wade were overturned because it’s just going to return these decisions to the states. Many people think, well, I live in a state where this would never happen, or I could travel to one of those states and I’ll be protected.
This is a federal law. This, in fact, is a law that applies around the country, whether you live in New York, California or anywhere in-between, and therefore, no matter where you live, if you are a woman with serious medical conditions who needs to terminate a pregnancy and who should have the safest medical procedure, cruelly enough, sometimes in order to protect your fertility so that you can have a later pregnancy, this law will prevent your physician and you from having that procedure, no matter where you live.
And finally, I want to say that if anything illustrates the importance of one vote on the Supreme Court and a change in one person sitting on the Supreme Court, it’s this case. As we heard, Carhart One had a very different result. With Sandra Day O’Connor’s departure, we see a flip. Justice Kennedy, I think, demonstrated some real ambivalence, and that is part of the uncertainty that Cathy and others have reflected upon this afternoon.
On the one hand, in Casey some years ago, he refused to overturn Roe v. Wade in its entirety, and he supported striking down a requirement on spousal involvement in a woman’s decision to have an abortion. He also, in this case, held onto what to me is an unrealistic notion, as Eve pointed out, that there could be an as-applied challenge. That kind of ambivalence, that kind of discomfort – and it was reflected in the questioning that he had during the oral argument in the case – leads to uncertainty in the future about where he ultimately, as the swing vote on these issues, will go as future challenges come up to the court and future restrictions on women’s rights and health protections are presented.
I want to conclude with a point with respect to where the public is on this issue. The public does support the retention of Roe v. Wade strongly. That comes up in poll after poll after poll. Also, what we’ve seen are referenda involving state partial-birth abortion bans, as they are called, being defeated because in those referenda the health consequences to women and the absence of health protections for women are simply unacceptable to the public at large. When women in this country, and the men who care about them, and those who want to see families safe and their health protected recognize what the implications of this decision will be, then I think the future debates about where we go, especially as we see new openings on the court, will become all the more intense, all the more heated, and all the more vital for everyone in this country to pay attention to if they care about their rights, their health and their future. Thank you.
M. EDWARD WHELAN III: Thanks very much. I’m pleased to be here. In the grand scheme of things, Gonzales v. Carhart is a minor ruling. It does not signal any major shift in the court’s underlying abortion jurisprudence, much less any retreat from the court’s rulings in Roe v. Wade and Planned Parenthood v. Casey. It remains the case that the Supreme Court continues to impose on this country a regime of essentially unrestricted abortion throughout all nine months of pregnancy, a regime that is otherwise unknown in the civilized world. Unfortunately, nothing in the partial-birth ruling suggests any change to that, and Marcia’s effort to isolate the words rational basis from the sentence that talks about undue burden shouldn’t obscure that.
Now, within the regime of Roe and Casey, the court’s ruling does produce significant and positive change on a subsidiary issue: the technical, but important issue of the legal standard for assessing so-called facial challenges to abortion regulations. We’ve heard some reference to this already. Consider this question: Let’s assume, for the sake of argument and contrary to what I understand to be the facts, that there actually are some circumstances in which partial-birth abortion is necessary to preserve the mother’s health. Even in the regime of Roe and Casey, what reason would that give to invalidate the Partial-Birth Abortion Ban in its entirety, in all its applications, rather than just to prevent its application in those health-threatening circumstances?
Thinking about this question raises the distinction between facial and as-applied challenges. A facial challenge to a law aims to strike down the entire law, while an as-applied challenge seeks merely to prevent the law’s application in particular, defined circumstances. The so-called Salerno Rule is that in order to prevail, the person challenging the law must show that no set of circumstances exists under which the law would be valid. This rule promotes judicial restraint by requiring that judges defer to legislative enactments that have permissible applications. At the same time, as-applied challenges are available to bar impermissible applications.
Let me briefly make two points here. First, Eve suggested that the justices were imposing their own moral code. No, what the justices in the majority were doing was letting the law enacted by bipartisan majorities in both houses of Congress take effect, not imposing anyone’s morality. The imposition of morality comes from the Stenberg majority that would strike down the Nebraska law and all the similar laws throughout the country and from the dissenters in this case, who would not let the law go into effect.
Second, contrary to what’s been said, as-applied challenges could be brought right now. The person to bring the challenge is not the woman who’s suddenly discovered she’s facing a health risk; it’s the abortionist. That’s clearly contemplated by the majority opinion and, as I’ll discuss later, it’s rather remarkable that no such as-applied challenges have been filed yet.
Neither Justice Ginsburg nor anyone else disputes that the federal Partial-Birth Abortion Ban has plenty of constitutional permissible applications: for example, the countless instances in which the law prevents the partial-birth method from being used for post-viability abortions where there’s not even a claim that it serves the mother’s health interest. So under the ordinary rule for facial challenges, it’s a slam dunk that the facial challenge to the federal law fails.
Why isn’t this the end of the story? Because the court, on an ad-hoc and unprincipled basis, without acknowledging, much less justifying what it’s doing, has sometimes in the past applied much looser standards for facial challenges to abortion regulations. One instance was in Casey. There the majority, in striking down a spousal notification provision that indisputably had lots of permissible applications, relied on its novel assertion that the provision applied unconstitutionally to a large fraction of the cases in which it’s relevant – the so-called large fraction test.
A much more extreme instance occurred seven years ago in Stenberg. With no analysis or explanation, the majority there applied the polar opposite of the ordinary rule for facial challenges. The hypothetical possibility that the ban might have any impermissible applications led the court to invalidate it in its entirety.
In its recent ruling, the court found it unnecessary to decide whether the ordinary facial challenge rule or Casey’s large fraction test should apply to abortion regulations, since the federal ban was facially valid under either test. What the court did do was reject the extreme approach that had been adopted in Stenberg. In short, the court in Gonzales v. Carhart restored some sanity to the facial challenge standard for abortion regulations.
While it remains open whether the court in the future will apply, in the abortion context, the ordinary rule for facial challenges or the large fraction test invented in Casey, the court has clearly signaled that facial challenges to abortion regulations, like facial challenges to other laws, should be disfavored. What this means is that within the Roe-Casey regime, legislatures have more breathing room to craft abortion regulations on informed consent, for example, without having to worry that the entire regulation will be invalidated because of some hypothetical situation.
Now let me address the concerns that have been expressed over women’s health. A proper understanding of the facial challenge issue puts this in proper perspective. The court has said, bring your as-applied challenges. It’s been two months; it’s remarkable that not a single as-applied challenge has been filed by the abortion litigation juggernaut that manages to get into courts throughout the country to prevent laws from ever taking place, a juggernaut funded by the wealthiest foundations in the country with access to the top legal talent, pro bono, from major law firms throughout the country.
Not a single action has been filed. I don’t know why that is. Perhaps it’s because this concern over women’s health was just an excuse to try to get the entire ban invalidated, and when that failed, no concern remains for these hypothetical situations. Perhaps they know they can’t prove it. Perhaps they see some political advantage in pretending that Gonzales v. Carhart puts a woman in the situation of filing for a TRO [temporary restraining order] while she’s suffering a hemorrhage. Whatever it is, it’s remarkable that those cases haven’t been brought, and some attention really needs to be focused on that.
Justice Ginsburg’s dissent, if and when the Roe-Casey regime is finally dismantled and abortion policy is restored to the democratic processes, will play a valuable role. Her dissent will show, among other things, how unworkable and subjective the undue burden standard is. Both in Stenberg and in this most recent decision, you have justices, including those who authored the plurality opinion in Casey that adopted the undue burden standard, dividing sharply over what that means.
I want to make a couple final points. First, Justice Kennedy has some rhetoric in this opinion that has been the focus of criticism. For better or worse, the opinion is vintage Justice Kennedy. We see this rhetoric in all his opinions. What he’s saying is that the congressional basis is permissible. But sometimes he writes things like, “At the heart of liberty is the ability to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life,” and “Liberty finds no refuge in a jurisprudence of doubt.” He writes these pompous, moralizing passages – (laughter) – that can understandably drive some folks crazy. What’s significant is that usually he does it in overriding what the majority has done and imposing the left’s view of social policy. Here, he did it in deferring to what had been enacted democratically. And that is a huge difference.
Finally, in terms of where the public is on this issue, polls do not show what Marcia has indicated. In fact, a recent poll we commissioned that has been validated as sound shows that once folks understand Roe – when they really know what’s not permitted under Roe and that Roe’s overturning would leave things to the democratic processes – the support for overturning Roe, especially among Democrats, soars. So I can understand why folks who favor Roe are scared by this prospect and why they’re trying to be alarmist. But what is significant is that the overwhelming majority of the American public – 60 to 70 percent – believes that abortion should be illegal in the very circumstances that count for 90-plus percent of abortions. You have this tremendous gap that we’ve had in place for the last three decades where the court has imposed this extreme regime and the American people haven’t adapted their sensibilities to it and never will.
So I think what we need over the long run, sooner rather than later, is to have abortion restored to democratic processes where we can work out our differences. I don’t expect my views will prevail, but I’ll play by the rules of the game. There is no core constitutional right here. Roe is an invention, and the sooner the court admits that and sets things right, the better. Thank you.
APPELBAUM: Thank you, all four of you. What I suggest we do next before opening it up to questions is to see whether any of the panelists would like an opportunity to give a rejoinder to anything specific that the other panelists said. So maybe back in the same order where we started. Eve?
GARTNER: Thank you. I did want to just briefly respond to some of Ed’s points on the facial challenge issue. Just a year ago, last term, the court decided the case Ayotte v. Planned Parenthood. The court said that was a challenge to a parental notice law that lacked an emergency exception, and the court agreed that the law – to the extent that the law required a minor to involve her parents in a decision but lacked an exception where the minor didn’t have time because of an emergency medical condition – that it was unconstitutional, at least as applied to those minors who need an emergency abortion. The court suggested that the lower court, which had struck down the entire law because of the lack of an exception, had perhaps overreached, though it didn’t say definitively.
It remanded the case back to the First Circuit for further analysis of whether the unconstitutionality required complete invalidation of the law or whether partial invalidation would have been appropriate. Now, that was only a year ago. The fact was that it was completely open to this Supreme Court had it accepted the overwhelmingly documented proposition that intact D&Es are sometimes the safest for the woman; it did not have to entirely invalidate this law. It could have done exactly what the court did a year ago and suggested that there was an intermediate approach that would have protected the health of women, without going as far as striking down the whole law.
This wasn’t just about facial versus as-applied challenges. The court had the opportunity to protect women’s health within the context of its own jurisprudence issued just one year ago in the Ayotte case, and it specifically chose not to do that. Finally, on the whole question of as-applied challenges, in addition to the unworkability of a woman filing a lawsuit or her doctor filing a lawsuit at the moment that she’s hemorrhaging, I think it’s known that in the cases that went to the Supreme Court, the injunctions at issue in those cases have not yet been lifted by the lower court. So the fact that no lawsuits have been filed on behalf of women with serious medical conditions should be no surprise as the injunctions remain in place. So there’s no subterfuge here.
As a final point, one of the doctors who testified in this case and is the director of high-risk OB-GYN at Cornell, whose major practice is helping women with high-risk pregnancies deliver babies safely and deliver healthy babies, said in his testimony: The reason I do intact D&E, it’s not my preference; I do it only for my patients. There’s no particular reason that he would choose to do this procedure, other than that it’s his medical judgment that this is in the interest of his patients, and this is the judgment that Congress has rejected and the Supreme Court has now rejected. There’s no doubt based on the testimony in these cases that some women will suffer harm as a result. Thank you.
RUSE: Couple quick points. Most American women wanted this violent and inhumane procedure banned. There was plenty of evidence at trial that they are not fully informed before a partial-birth abortion is done on them. There’s nothing controversial about requiring plaintiffs in a lawsuit to prove their case with real facts and hard evidence, rather than hypothetical arguments. Here I’m referring to the health exception claims. In fact, this is standard operating procedure under American law.
What the court said that I think is very welcome and Ed has discussed this – but I have a couple of quotes – is that abortion doctors “should be treated the same as other doctors” and not put above the law when it comes to challenging. They have no right “to foreclose the exercise of legislative power” just because they disagree with a law. This case stands for the proposition that abortion doctors don’t get a veto power over the abortion policy either of a state or of the nation. The bottom line ruling to this facial challenge is that plaintiffs, including abortion doctors, have to prove their case with real facts and hard evidence, rather than hypothetical claims.
Now, Justice Ginsburg does not take the position of Eve and Marcia as to whether such an as-applied challenge would be dangerous to women’s health. In fact, she calls it a redemptive part of this decision that the court left open pre-enforcement, as-applied challenges. In fact, she says these challenges could be made claiming discrete and well-defined instances in which a particular condition has or is likely to occur that would require the procedure to be used. She continues “one may anticipate that such a pre-enforcement challenge will be mounted swiftly.” Well, it has not been mounted.
Let’s look at the reality of partial-birth abortion. What is the reality of the practice of partial-birth abortion today? And this comes from two sources. One source is the National Coalition of Abortion Providers. What does this institution have to say about the real facts about partial-birth abortion? This organization says that in the vast majority of cases, this method is used on a healthy mother with a healthy fetus that is 20 weeks or more along. The other source we can look to about the facts of partial-birth abortion practice is the state of Kansas. Kansas is the only state in this country that has a reporting requirement for partial-birth abortions. In its first year of reporting, 182 partial-birth abortions were reported. They were reported to be done on babies in the sixth month of pregnancy or beyond and, importantly, according to Kansas medical records, every one of the 182 partial-birth abortions was done for mental health reasons, not physical conditions or health risks. So that’s the reality of partial-birth abortion. Thank you.
GREENBERGER: One of the great frustrations is trying to sort out what “the real facts” are in these debates and what the American public believes. So I’m going to look at the actual way people act and describe the issues that we’re debating today. Going back to Ed’s comments about polls that he’s pointed to that show that people don’t support Roe v. Wade, when Ruth Bader Ginsburg and Stephen Breyer were subject to Senate confirmation for the Supreme Court, they indicated their basic support for Roe v. Wade. When Justices Alito and Chief Justice Roberts were in their confirmation hearings, they would not answer any questions regarding their views on Roe v. Wade. Now that would tell volumes, I think, to many of us about where they saw public opinion on overturning Roe v. Wade.
I also found very telling that Ed described this decision as no big deal. What we have also seen time and again from those who are opponents of Roe v. Wade is an attempt to minimize any worry that it will be overturned, to minimize any concern with it’s being cut back and eviscerated, and to try, in my view, to calm a public that does support Roe v. Wade and wants these protections in place and a public that does not want to go back to days when women’s health and their very lives were subject to such serious risk.
Secondly, with respect to the legislative process and the democratic process and Congress acting in place of physicians, perhaps we saw the epitome of that most recently in the case of Terri Schiavo, where Congress – that same Congress – was willing to substitute its views of morality for the family’s views and its views of the medicine and what the real medical facts were – as they called it – for what physicians and accepted medical practice views were. The public, again, recoiled from that sight.
The American public does not want to see Congress practicing medicine and substituting its views for those of the physicians in real life circumstances when they are facing women. As I said, often the cruelest set of circumstances when those women are trying to protect their own health and their ability ultimately to maintain a safe pregnancy. The purpose of a constitutional right, after all, is to protect all of us as American citizens from the vagaries of an out-of-control legislature, Congress or in the states, in the areas where we have fundamental rights and protections that our Constitution stands for.
Finally, we had recently a Sixth Circuit decision involving a state ban in Michigan, ultimately post-Carhart, where under the rubric of partial-birth abortion, the court held that the definition was so broad and so sweeping that it would have banned procedures in the first trimester, the most common procedures. So there is a lot of rhetoric being thrown around, a lot of loose terminology being thrown around. But when we look at the actual practices of what the courts have to contend with and also the way those who oppose Roe v. Wade try to minimize the restrictions on women’s rights, I think we can understand how serious the situation is that we’re facing. Thank you.
WHELAN: Three quick points, the first two in response to Eve. Eve misstates the Ayotte ruling from last term 180 degrees in the wrong direction. I guess we’re supposed to believe that Justice Scalia and Justice Thomas joined some opinion embracing the view that a health exception was needed under the Constitution. What the court did in Ayotte is a close cousin of what the majority did in Gonzales v. Carhart. Indeed, Ben Wittes has an interesting essay in the liberal journal The New Republic that makes exactly that point.
In Ayotte the court said, we took this case to address this whole facial challenge question, but we’ll decide we don’t need to address that. Instead, we’re going to focus on the question of remedy. The court below didn’t think about whether it had an option to simply carve out part of the statute or overturn it entirely. In other words, what the court did in that case was, in the remedial context, invite a more narrow crafting of remedy in the same way it said in Gonzales v. Carhart, bring these cases in as-applied contexts not as facial challenges.
Secondly, after having been told half an hour ago that as-applied challenges haven’t been filed because they can only be filed when the woman is about to hemorrhage, we now learn that they haven’t been filed because injunctions haven’t been lifted. Well, that doesn’t make any sense. Injunctions are districtwide. If you’re really concerned about making sure that the law is in place, why would you wait? You’re going to wait until the injunction is lifted and then say, oops, we better act now; uh-oh, there’s been a day or a week when we haven’t had our challenge in place? There is something going on here, some sort of gamesmanship, some deep flaw in the position of the other side that merits examination.
Third, Marcia’s comments indicate that maybe I’m being coy about my desire to have Roe overturned. I want Roe to be overturned. All Americans should want Roe to be overturned. And in terms of what Americans actually think, what they actually want, there is one good way to see. Restore abortion policy to democratic processes. The people, over time, will decide and vote and revise their policies. That’s the way our system is. That’s the way the Constitution leaves it. That’s the way it should be. Thank you.
APPELBAUM: Okay, I think we know where our panelists stand. Now it’s time for questions. I would ask, first, if there are members of the press or the media here, we’ll call on you to make sure you get a chance.
QUIN HILLYER, THE WASHINGTON EXAMINER: First to Ed Whelan and then to somebody who did not like this opinion, either one of the two. (Laughter.) Ed mentioned the large fraction test from Casey. Without getting too much into the weeds, one of the key points in this decision was how far afield Justice Ginsburg did or did not go in applying the large fraction test by changing the denominator – what the critics have said she was trying to do with her dissent. I’d like a couple of people first to explain it, because you all can explain it better than I can, and then to comment on what the significance of that is. Thank you.
WHELAN: This may be rather arcane, but I’ll try to be brief. Justice Ginsburg in her dissent maintained that she was indeed being consistent with the large fraction test of Casey. She actually said there is no fraction here because she defined the numerator and the denominator to be identical and said they always would be. She is clearly rejecting the large fraction test because she is saying that the numerator and the denominator will always be the same. In other words, the fraction will always have a value of one and, in her language, not be a fraction. Clearly, this is an effort to repudiate the ordinary facial challenge standard and to try to reconcile the radical test of Stenberg with precedent, and it’s not successful.
GARTNER: Just for those of you not immersed in the arcana of the court’s abortion jurisprudence, the term “large fraction” is one that the court used in Planned Parenthood v. Casey in the context of invalidating the requirement that married women notify their spouse before they have an abortion. The court struck down that provision saying that it would have an undue burden on battered women, women who were the victims of domestic violence, because even though only approximately 1 percent of all married women are battered, a large fraction of those battered women would find a spousal notice requirement to be a substantial obstacle to getting an abortion. And because a large fraction of battered women would find it to be an undue burden, the court found that the law was unconstitutional and had to be invalidated in its entirety.
The court has never in any context applied this large fraction analysis to the question of whether an abortion restriction needs a health exception. If you look at the Casey ruling itself, there was a claim that the medical emergency exception to the 24-hour waiting period wasn’t adequate to protect women’s health. The court said that if the law did not allow women with three particular conditions – preeclampsia, premature ruptured membranes, and I forget the third – but the court said if women with those three conditions couldn’t get an immediate abortion, then the law would be an undue burden and unconstitutional. It never looked at whether those women amounted to a large fraction of women having abortions. Clearly women with those three fairly unusual medical conditions are not a large fraction of women getting abortions. But the court said had the law not protected those women, it would have been unconstitutional.
In Stenberg, again, there was no argument that women who need intact D&E for particular health reasons were a large fraction of women having abortions. But again, in Stenberg, the court said the law was unconstitutional for lack of a health exception. And finally, a year ago in the Ayotte case – which I did not misrepresent – the court agreed that the absence of an emergency exception in the New Hampshire statute was a constitutional flaw in the statute, even though it’s clear that the number of minors in New Hampshire that need an emergency abortion so quickly that they can’t notify their parents is not a large fraction of minors having abortions in New Hampshire.
So the court has never applied the large fraction test to the health exception for really the reason that Justice Ginsburg says, which is that you need an exception for the exceptional circumstances. It’s really quite a chilling and callous argument that if not enough women are going to suffer severe harm, the statute has to be upheld. But that’s where this court ended up. Thank you.
WHELAN: I need to respond very briefly on two points. First, on Ayotte, again we’re learning that evidently Justice Scalia and Justice Thomas have abandoned their long-held position on the constitutionality of abortion regulations. Read Ayotte; read Ben Wittes. What Eve is saying is utterly wrong.
Second, I’m sorry, on the large fraction test the provisions of the Pennsylvania spousal notification provision are routinely misrepresented. In fact, that statute had an exception, a slew of exceptions. One, the woman did not have to provide notification if she stated that she believed that notification would cause her husband or someone else to physically injure her.
GREENBERGER: But isn’t the point that those were struck down and that whatever you may think is right about how a large fraction test ought to apply, it was never applied the way you would have liked until now? Isn’t the point at the end of the day that people who have had particular needs were able to be protected under the Constitution and a large fraction test did not stand in the way, even if they did not make up a majority of people who might be affected by a particular piece of legislation?
PAT ZAPOR, CATHOLIC NEWS SERVICE: What direction will state legislation be going next and what direction will litigation be going next?
APPELBAUM: I suspect the two are related. (Laughter.)
RUSE: I gave a brief outline of what I thought might be the next steps and what probably would not be the next steps – or at least not likely upheld. I mentioned informed consent. That clearly was important. The court clearly recognized that it is a legitimate state interest to be concerned about whether women are fully informed before an abortion decision.
Also, there’s been a lot of talk lately about ultrasound legislation, so I thought I would address that. The ultrasound measures would ensure that an abortion clinic operator shares the ultrasound images with women before performing the abortion on her. Some of them have an optional requirement. Other legislatures are considering it to be a mandatory provision for the clinic operator to do this.
The argument for these measures is that the best information about fetal development should be in the hands of the person who will have to live with the abortion decision for the rest of her life, not only the person who stands to profit from the abortion. Studies show – they are disputed, but there haven’t been any countervailing studies – but the studies that are there show that 80 percent of women change their minds about having an abortion after seeing ultrasounds. What does that tell us? That tells us that this information is relevant and that it is meaningful to women. So after Gonzales would the court uphold an ultrasound measure? I think the clear implication is that it might well uphold a measure. Of course it depends on what it said and so forth. So that’s one avenue that is already being pursued and that I think is being talked about a lot.
The idea that this case has now paved the way for legislators to go and ban the other late-term abortion methods is just not supported by the decision. The court in part relied upon the fact that there were other commonly used abortion procedures, primarily the dismemberment procedure, that could be used in place of the partial-birth abortion procedure. The court addressed this very issue and said it would be illogical for us to say that this one procedure can be banned because there are others available but the others are gruesome too so you can ban those too. The court addresses this sort of, so I don’t see legislation going in that direction.
GREENBERGER: Can I just say one very quick thing about informed consent and real facts and things that women are going to have to be told, about 80 percent regretting their decision, etc.? We heard this with respect to abortion causing breast cancer not so long ago and actually even saw those claims on a federal government website. Those claims were so anxiety-provoking and so important that major studies were done in order to evaluate those claims at the same time that many who were opponents to abortion were cavalierly making those charges all over the press, in public forums, wherever they could.
Ultimately after those studies, it was shown that there was no link between abortion and breast cancer, and what we now see are wild claims that then put the burden on others to disprove rather than to prove these claims. That is a part of why under this rubric of so-called informed consent, all kinds of scare tactics are being suggested to be legislated that women must be told and that physicians, even though they don’t agree with them, must tell their patients.
MARGO PAVE: My question is to Cathy and Ed. Both of you insist that this is really not a very important decision in regards to restricting abortion. Really, it only applies to one limited procedure. My question then is, why is the anti-choice community – most of it – so happy about this decision if in fact it isn’t an invitation to further restrictions on a woman’s constitutional right to choose an abortion?
WHELAN: I said, and I’m looking indeed at my notes here, that this is a minor ruling. It doesn’t signal any major shift in the course of abortion jurisprudence, nothing here that signals a retreat from Casey. Indeed, Justice Kennedy is embracing Casey. But I also said that the opinion produces significant and positive change on the subsidiary issue of facial challenges and that that opens the avenue for more legislation, more breathing room. So I think that’s my view. Within the Roe-Casey regime, if we’re still stuck in that regime, this is an opinion to celebrate.
RUSE: I think I said that it’s a significant case, and I would happily say it’s an important case. What I wanted to be clear was that it’s not a broad case in that it doesn’t open broad new avenues of legislation. But it’s absolutely a significant case. It’s significant in large part because it brings America’s law on abortion closer to Americans’ views on abortion, and that is a triumph for democracy and the rule of law.
The process that this country has been through in over 10 years has been a victory for the American people, for women and children, because it has forced the abortion debate to be on the subject of abortion and what an abortion is, and in particular what this kind of abortion is.
I don’t want to speak for the other side, but I will say that it is a theory that the reason why public opinion polls are skewing in favor of pro-life and against abortion is in part because of the public debate on partial-birth abortion. So I will go so far as to say that I think the reduction in the number of abortions that we have been seeing, it’s still very high – 1.3 million every year in America-. But it’s a little less than it used to be, and it’s possible that that also is a result of the whole partial-birth abortion debate. So I think this is an important process and it is an important law.
MICHAEL KRAUSS, GEORGE MASON UNIVERSITY LAW SCHOOL: This is really a question for Ed Whelan because, Ed, you’re the only one who addressed this tangentially in your remarks. It’s about a tantalizing bid of Justice Thomas’ concurrence. I’m talking about the federalism aspect of this.
Obviously a large part of the thrust against Roe is not necessarily that abortion should be allowed or disallowed, but that this should be left to the states. Of course this is a federal bill that was upheld by the Supreme Court, so some were mildly surprised that Justice Thomas, among others, signed onto it, and I’m just interested in your thoughts on the federalism aspect. Thanks.
WHELAN: First, Justice Thomas spells out in his brief concurrence, which Justice Scalia joined, that no one in the case challenged Congress’ power under the Commerce Clause. My understanding – I’m happy to be corrected if I’m wrong – is that the abortion litigators were concerned that a ruling against the bill on Commerce Clause grounds could jeopardize the so-called Freedom of Access to Clinic Entrances Act, as well as a host of other pieces of legislation that they are interested in.
Just one other point: This act may never have been enacted but for Stenberg. So it’s the court’s error in striking down the Nebraska statute in Stenberg that led folks to focus their efforts on Congress. One final note, I agree entirely with Cathy Ruse that it is important that states craft their own partial-birth abortion bans modeled on this federal ban for a variety of reasons, including that they can control their own enforcement initiatives, but also in the hypothetical situation in which this act would ultimately be invalidated on Commerce Clause grounds.
MICHAEL FRIEDMAN, AMERICAN HUMANIST ASSOCIATION: This is a question for Marcia. I was wondering if you give any weight to the thought that a papal moral majority has been created on the Supreme Court in the five-member Catholic voting bloc that voted in this case.
GREENBERGER: Well, what I have given most attention to is the diminished diversity on the court, in particular with Sandra Day O’Connor’s departure, and what having only one woman on the court has meant and the undue burden it has placed on Ruth Bader Ginsburg to be the articulator and the only person who can describe the real-live effects of pregnancy, privacy rights, decision-making autonomy on women uniquely in these circumstances. That to me is a great setback, as Sandra Day O’Connor and Bader Ginsburg, themselves, have both said.
WHELAN: What an offensive question. I just want to highlight that the Catholic justices in the majority deferred to the democratic process. They did not impose their own view on anything. Again, it’s the dissenters who would have overridden the federal law. It’s the majority in Stenberg that did that. So to suggest that there is a papal moral majority is an appeal to bigotry.
RUSE: Can I make – (applause) – here, here. I just have to say that Justice Ginsburg does not speak for all women in America. I want to be on the record as that. She doesn’t speak for me. In this case in particular, she does not speak for the majority of American women, who wanted this law passed. I think it’s an offensive proposition to suggest that if you own a pair of ovaries then you can claim to speak for all women, and that is just not true.
BOB RITTER, JEFFERSON MADISON CENTER FOR RELIGIOUS LIBERTY: I would like to ask Ed and Cathy, this country was founded not only on majority rule, but also more particularly on the rights of individuals. I reflect upon the first through eighth amendments, as well as others, and I am very disheartened by Ed’s comments to put our rights up to majority vote, which is nothing but tyranny of the majority.
WHELAN: Well, you are disheartened by comments I did not make. Our Constitution creates a scheme of representative government. It spells out certain things that are off limits, and it leaves those other things to our elected representatives to decide. We also, of course, have a founding principle in this country that all men and women are created equal and are endowed by their creator with the right to life. We can cite and counter-cite founding propositions if you like. But the bottom line is that if the Constitution doesn’t carve it out, it’s to the people to decide, and that is what governs here.
RUSE: Maybe just reacting to your use of the word tyranny, which I find is very interesting because it is a tyranny of un-elected justices who imposed their policy preferences on the issue of abortion on the nation that we are operating under today. So tyranny is a good word, but I think it’s more appropriate used in a different way.
WHELAN: Could the hisser – we have a wonderful person who keeps hissing here. (Laughter.) Could the hisser identify himself?
APPLEBAUM: Let’s have one quick question. Let’s leave the hissing out of it.
MARJORIE SIGNER: I wrote down that you said Carhart is a decision that does –
APPLEBAUM: Whom are you addressing this to?
SIGNER: Ed and Cathy. – that this is a decision that does not retreat from Roe and Casey. So am I to understand that there will be no more attempts to pass bans, or did I mishear you?
WHELAN: I think the question is a non sequitur. My description of the case is right, but the question of what the court decided in Gonzales v. Carhart has no bearing on what American citizens are free to try to enact through their legislatures nationwide. I think you’re going to see an incremental effort to come up with regulations widely supported by the American people that will be upheld by the court. I hope as we get improvements in the court’s composition, we’ll see progress. So I’m certainly not suggesting that the Gonzales v. Carhart case represents the end state of things.
APPLBEBAUM: I think that is a good point to end on. I would like to thank all of you for coming, and especially thank our four panelists. How about a round of applause for all of them?
Thank you so much.
This transcript has been edited for clarity, spelling and grammar by Amy Stern.