So I just finished reading the Supreme Court's 5-4 decision in Gonzales v. Carhart and Gonzales v. Planned Parenthood. In that decision, in case you're living under a rock while you surf SP, the Court upheld a Congressional Act banning "intact dilation and evacuation," an abortion procedure that is, quite frankly, too gruesome for me to describe. Now, don't get me wrong - it's a disaster of a decision for those who think that reproductive rights are important. And today, for you and me, it's a terrible result.
But I think in the long run, it'll all be all right. Let me explain why.
First of all, the Court rejects merely the facial challenge to the statute, basically telling Respondents that there are ways to enforce the Act that are constitutional - in other words, that don't impose an "undue burden" on the woman seeking the abortion.
My feelings on the "undue burden" standard are well known, but assuming it to be correct (which I have to do), the Court isn't wrong. The statute, on its face, can be enforced constitutionally. The Court lays out in great detail what that sort of enforcement regime would look like, medically - but it leaves out an important component. Namely, the legal aspects of the enforcement regime.
First of all, can Congress even act in this manner? What source of power does Congress have here? Interestingly enough, Justice Thomas (of all people) brings up the issue in his concurrence, indicating that he might have voted to strike down the statute on such a ground, although it's beyond the scope of the case.
Second, is there a way to punish breaches in a way that is permitted by the Constitution? Unless the Court is going to completely reverse the majority in Casey, which struck down a reporting requirement that imposed too great a burden on the woman's privacy, I don't see how it can be done. Absent some mechanism to determine the doctor's intent without reference to his notes (covered by privilege) or placing an agent of the state IN the procedure room, I don't see a way to prove whether a given doctor intended to perform a particular abortion in a proscribed manner. Since the Court makes much out of the required intent, I don't see how the Act could ever be enforced except by voluntary compliance.
Finally, the Court's decision leaves open the possibility of an as-applied challenge. In other words, it doesn't seem to me like U.S. Attorneys are going to really put forth a ton of effort to enforce this act. More likely is that some anti-choice group will be suing doctors under whistleblower provisions in an effort to harass them out of business. In that case, I could easily see the Court announcing a rule that the Act does not create private causes of action or that enforcement efforts absent probable cause are unconstitutional - and announcing a heightened standard of probable cause.
And even if the Court manages to avoid those mines, the simple fact is that it's not a very good decision. Kennedy is clearly uncomfortable with this needle he's having to thread. Ginsberg's dissent is absolutely scathing, and even Thomas' concurrence questions whether the Act is constitutional. Probably this will be the law of the land for a time - maybe even a fairly significant period of time - but it will eventually be overruled. The Court just isn't confident enough here to make it stick.