The Constitution and the Red Herring of Abortion - Gonzalez v. Carhart

The recent Supreme Court decision in Gonzalez v. Carhart, upholding a federal law on partial birth abortion, is being played up as a huge assault on women's fundamental rights by pro abortion advocates. It's not. That does not of course stop the New York Times and others of their ilk who are already proclaiming it as such in order to generate money and votes for pro-abortion candidates in 2008. For the anti-abortion crowd, the decision is being played up as a huge victory. It's not that either. In all actuality, as Justices Thomas and Scalia suggested in their concurring opinion, this case might well have been decided differently if the proponents of abortion rights had simply argued in their case that the federal government did not have the power under the commerce clause to regulate partial birth abortion.

Does that latter surprise you, that the two most "conservative" Justices on the Court would suggest a willingness to strike down a federal law limiting abortion? I will get to their reasoning in a moment.

The federal law on partial birth abortion has no impact on 90% of all abortions conducted in the United States - that 90% occuring during the first trimester of pregnancy. And indeed, the federal law on partial birth abortions is itself only a partial ban on such abortions. It makes illegal just one gruesome method of conducting abortions during the second trimester of pregnancy. Specifically, the federal law makes it illegal to deliver the living fetus outside the vagina before killing it, something usually done by crushing its skull. In the decision to uphold this law against a facial challenge, the court found that the law was sufficiently clear that a doctor could know what method was made illegal by the law and, by banning only one method of abortion, the law did not unreasonably burden a woman's right to an abortion.

There is a much larger and more important issue at work here. You can be very much pro-abortion and still be against abortion as a "constitutitonal right" - at least without a specific amendment being passed to make it one. Indeed, one of the great proponents of abortion rights on the bench today is Justice Ginsburg, who herself criticized the Roe v. Wade decision ensconcing abortion as a constitutional right as a poorly reasoned decision.

The larger issue is whether the Constitution should be interpreted as written and, to the extent possible, in consideration of the intent of the people who drafted it, or whether it can be expanded beyond that to mean whatever a couple of sitting justices want it to mean on any particular day - in essence, imposing their own personal belief system on America as a matter of constitutional law. This latter approach is often referred to as the "living constitution." For a good look at this issue, see Justice Scalia's speech on the living constitution in 2005, and here is a transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution.

Looking outside the four corners of the written Constitution and the intent of the drafters makes of the Supreme Court a supra-legislature, taking over the position of Congress and the executive to create laws rather then to interpret them in light of the Constitution. That is not the function for which the Supreme Court is designed. Besides not being assigned any legislative role in the Constitution, the Supreme Court does not have the ability of Congress to hold hearings or subpoena witness - in essence, to make findings of fact beyond whatever record lies before it. Nor does allowing the Court such leeway comport with the concept of democracy. The Supreme Court justices are not subject to the will of the people, being an unelected body with tenure for life.

This is a much greater and more important issue then abortion because it has an effect on every case the Supreme Court hears. Unfortunately, it is also an issue that has, ever since the attack on Robert Bork led by Teddy Kennedy, been hidden by the rhetoric of the political left. They proclaim any attack upon Roe v. Wade as an attack on the "right of a woman to choose," irregardless of whether it is actually a well grounded criticism of the reasoning of Roe as bad law because the decision goes well outside of the framework of the Constitution. Roe created out of whole cloth a new constitutional right.

How dangerous is allowing the Supreme Court to treat the Constitution as a "living document" subject to the individual whim of Justices? Besides Roe v. Wade, which found a right to abortion in some ephemeral "penumbara of rights" outside of the text, possibly the worst decision that the Supreme Court has passed since the Dred Scott decision was the Kelo v. New London decided last year. That case, decided by the "liberal wing" of the Court, is a horrendous assault on private property rights, essentially rewriting the plain language of the Fifth Amendment to allow government to take your private property on the flimsiest of pretext and give it to another private party. It is horrible decision that is made possible only if one buys into the "living constitution" philosophy.

Which brings us full circle to the commerce clause and Justices Scalia and Thomas. Why would these two conservative justices possibly strike down a federal law limiting abortion? Because they see the Constitution and its drafters as silent on the issue, thus making its regulation a question for the states and, by its nature, beyond the power of the federal government to regulate under the commerce clause. That is appropriate jurisprudence. This nation would be well served if the left stopped their partisan pandering to NOW and other far left groups that want Roe v. Wade used as a litmus test for Supreme Court nominees. If you want a litmus test, it should be whether a prospective justice would support Kelo v. London.

Update: See also this similar take on the Cahart decision at the Wall St. J.