It must be said that Ben Wittes’s inevitable defense of Carhart II is somewhat less objectionable than his typical writing on the subject, if only by virtue of its incoherence. He labels the rank sexism of Kennedy’s opinion “absurd,” and even concedes that “in some respects, it’s a big win for anti-abortion activists.” (Of course, he’s now on the record as claiming that Carhart II might have at least some negative impact on a woman’s right to choose an abortion, while overturning Roe entirely would have a positive impact. I would try explain this, but I lack the ability to make heads or tails of the High Contrarian logic that is desirable if you want to write about abortion for most of the nation’s primary op-ed pages.) Still, his bottom-line claim that the Court’s rejection of a facial claim against Congress’ arbitrary regulation of abortion is likely to prove “constructive” requires evading virtually all of the problematic aspects of the opinion:
- It’s nice that he calls out the Court for its sexist assumptions, but he then treats Kennedy’s assumptions about the deficient decision-making capacities of women as essentially meaningless dicta, when in fact without them the entire case for upholding the statute collapses. Casey identified two state interests that may be advanced through abortion regulations (so long as they do not constitute an “undue burden” on a woman’s right to obtain an abortion): the protection of fetal life and the protection of a woman’s health. The PBA ban has no connection at all to the former–the government conceded at oral argument that it would not prevent any abortion from occurring–and even if one credulously defers to Congress’ findings that 2+2=13 at best the procedure is neutral to women’s health unless one assumes that women are unable to rationally make this choice for themselves. Kennedy’s sexism isn’t merely incidental–it’s the meat of his argument, and Wittes certainly doesn’t deign to share with us what other connection with a legitimate state interest could make the burden imposed by the state “due.” Worse, if one accepts the premise that preventing women from obtaining abortions is an acceptable means of saving them from themselves, it’s not clear what abortion regulation Casey could possibly proscribe.
- Wittes’ discussion of the theoretical possibility the Court holds out of a successful as-applied challenge also makes little sense. I’ve discussed the importance of this issue to abortion cases in detail here and here, but Wittes doesn’t sufficiently grapple with a couple of important points. First of all, while it’s true that denying facial challenges before seeing if a statute has unconstitutional applications makes sense in many areas of the law, it’s inappropriate to apply it to abortion cases for an obvious reason: biology prevents the status quo in abortion cases from being frozen legally. Surely, as Ginsburg says, Kennedy cannot mean that a doctor waits until she has a woman in her office ready to perform surgery before she can apply for an injunction, but as Wittes acknowledges Kennedy sheds no light at all on what it could mean. If what is needed is evidence that the procedure is necessary in certain cases, this case is as good as any; at least two Circuit courts have already determined that there is. Are doctors supposed to risk legal harassment and/or prosecution by performing the the procedure when they determine it’s necessary to build a factual case? If not, what abstract evidence is good enough? He also, of course, essentially ignores the immense financial burden having to prove that individual applications of every abortion regulation are unconstitutional on pro-choice litigators, and the burden that will exist (especially on poor women) in the meantime.
- Moreover, Wittes is asking us to believe that a Court majority whose most moderate member wrote an opinion rife with hostility towards not only abortion but to women in general is likely to adjudicate future as-applied challenges in good faith rather than turning challenges into a Kafkaseque maze in which no challenge is ever quite specific enough. Let’s just say that the next time that Wittes is involved in a high-stakes poker game, I hope he gives me a call.
- And finally, the opinion concludes by claiming with his trademark argument that the decision “could let some of the air out of the balloon” of the abortion debate. Even leaving aside the question of why a mild attenuation of conflict should be preferred to the just outcome, I remain unable to follow the logic here. Apparently anti-choice groups will be less likely to pursue, and anti-choice legislators less likely to pass, incremental restrictions on the ability of poor women to obtain abortions despite the fact that the Court has signaled that the Casey standard will be almost entirely toothless when evaluating anything short of a ban and that challenging such regulations will be a bewildering, enormously expensive exercise because…look, it’s Halley’s Comet!
So despite the qualifications this remains the same old vinegary contrarian wine in a slightly cleaner bottle. Wittes, again, is asking us to move toward a compromise in the abortion debate by preserving the rights of women who will have access to abortion no matter what while sacrificing the women whose rights are actually at stake. Don’t buy it. He may be fooled by the clever, slow-motion gutting of Roe by the Court’s conservative wing, but you shouldn’t be.
[Also at TAPPED.]