I’ve been reading over the oral arguments in the two federal D&X ban cases; if I see any nuggets that don’t fit into my larger article I’ll pass them along. Although Pithlord seems to hold out hope, I continue to maintain that this case will not be decided on federalism grounds, which played very little role in the oral argument. (We’ve had this discussion before, but I think he’s misreading Scalia–in context, I think he’s referring to courts, not Congress. Raich essentially ends any chance of 5 votes to strike the law on Commerce Clause grounds.) Indeed, I think it is almost certain that the law will be upheld, although in what form remains unclear–I’ll get into why in the Prospect piece.
To take a bit of a tangent, one aspect of the arguments in this case is the question of exactly what “minimalism”–which has become a popular way of describing the median votes of the recent court–means. Althouse, for example, reads the argument as “Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.” It would be odd if Kennedy voted to strike the law (and I certainly don’t see how such an outcome could be squared with his decision in the Carhart I), but I guess it’s possible. But what are the “minimalist” options? The first option–whether the case is distinguished to uphold ot strike–would be to make distinctions between the Nebraska law and the federal law. But 1)given that the controlling case explicitly turned not just on the vagueness of the statute but on its lack of health exception, and 2)as Stevens points out the factual assertion of Congress that the procedure is never required for health reasons are plainly erroneous, no fair application of Carhart I could uphold the federal statute. The other “minimalist” upholding of the law, I presume, would be a repeat of his suggested Ayotte strategy of reading a health exemption into the federal statute, which could then be upheld without affecting the Casey framework. Whatever one thinks of this–I think very little of it: it seems to me to cross the line from the legitimate act of narrowly construing a statute to save it and simply distorting it–I’m not sure “minimalism” is a useful way of describing the action. Wouldn’t the “minimalist” action be to strike the law, given its transparent inconsistency with precedent, but to give Congress the opportunity to conform to precedent as it chooses? Simply skipping the middleman and inserting a health exemption Congress specifically choose not to include seems to me the opposite of minimalism.
But, at any rate, that’s a semantic issue. The larger point I wish to make is that it’s quite incorrect to equate “minimalism” with “judicial deference.” The Casey “undue burden” standard is, I guess, “minimalist” in the sense of having virtually no content. But the latitude this gives legislatures is largely illusory. The standard does allow courts to plausibly uphold virtually any regulation of abortion short of an outright ban–but is also allows courts to plausibly strike down any significant abortion regulation. Clear rules from the Supreme Court can often increase the latitude of legislatures by constraining the lower courts, which after all is where most decisions are made. Similarly, whatever reading legislation to include exemptions the legislature deliberately excluded is, it’s not deferential. And, of course, Sandra Day O’Connor–the justice most commonly identified with minimalism–was also probably the least deferential and most “legislative” judge of the Rehnquist era. Minimalism has its virtues and its problems, but I don’t think increasing the decision-making authority of elected officials is typically one of them.
Anyway, my preferred solution to these cases is Stevens’ approach in Carhart I, which like good minimalism should allows us to avoid the fraught question of whether reproductive freedom is a fundamental right altogether by noting that the statutes bears no rational relationship with any legitimate state interest:
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.