The abortion decision

The New York Times called it "fundamentally dishonest," and that pretty well sums up the Supreme Court's decision in Gonzalez v. Carhart (yes, THAT Gonzalez).

One aspect of the decision that I focused on which most observers have not was the question of where in tarnation the federal government gets the power to regulate abortions. This is important, because it goes to the continuing tug of war over where the boundaries of federal power lie.

For many years, we liberals pushed those boundaries, at least in most areas. With the coming of the "conservative" revolution and especially in the Bush years, it was our ox that was gored and we saw that federal power ought to be limited.

OK, so back to the decision. The majority never dealt with the question of federal power; all it did was to quote from the statute's prohibition on doctors who are in or affect interstate commerce. That might apply to a doctor who treats a patient in another state (one might question whether medical practice is commerce, but I think that horse has left the barn; those of us who think that doctors and lawyers can be liable for violation of consumer-protection laws can hardly make that argument), but what about the woman from down the block? The kind of arguments in favor of a broad interpretation of the Commerce Clause that actuated liberals for many years--viz., the New Deal--might accept that formulation. (In a case in 1941, the government argued that a farmer who never sold in interstate commerce, indeed, I think the one in question said he consumed all his own produce, was nonetheless subject to farm regulations, because his products were part of the total stream that included interstate commerce. The Supreme Court agreed.)

Here's the problem, though, at least as respects the decision this week: three of the five justices in the majority (Kennedy, Scalia and Thomas) voted to strike down the Violence Against Women Act a few years ago. The reason? The acts forbidden did not have a close enough relation to interstate commerce. One might think that perhaps the justices value fetuses more than women.

These are the same justices who have struck down other laws, because they found fault with congressional findings that formed the justification for them. Yet this week, Justice Kennedy noted substantial flaws in important parts of the congressional findings on which the anti-abortion statute, yet he went on to uphold its validity.

What gives? We know: the five justices (as Justice Ginsburg noted, all male) were determined to validate the statute at issue, and the decision was written to justify that aim. This is result-oriented jurisprudence, and it is the opposite of the way judges are supposed to decide cases.

I'm not going to comment on the parts of the decision specific to abortion; others far more qualified have done that. I will, however, go out on a limb and predict that Gonzalez v. Carhart will ultimately prove harmful to the anti-abortion cause. The fact that the Supreme Court has actually allowed a restriction on abortion that takes no account of the life or health of the mother to stand will galvanize millions who have stood on the sidelines. Given the general weakness of conservatives and especially of the GOP these days, that is going to help speed political change, which will lead to different laws and, ultimately, different judges.