What Obama Probably Meant, and an Answer

Rob asks what Obama could've meant in complaining about "facts cast aside for ideology" in the partial-birth abortion opinion.  This video from his campaign website doesn't include that passage, but it does show him complaining about how Kennedy's opinion (1) suggests that women will regret their abortions and (2) fails to defer to the position of the American College of Obstetricians and Gynecologists that prohibiting intact D&E would endanger women's health.  (Those are my paraphrases; the language starts around 1:30 in the 4 minute, 45 second video.)  On both of these counts, it seems to me, one could reasonably question the scientific/empirical argument for the partial-birth abortion ban -- i.e. one could question how many women regret their abortions, and one could agree with the doctors who say the partial-birth procedure is safer for women -- and thus it's comprehensible for Obama to claim that the Act "cast[s] aside facts."  (The facts about fetal life and development, of course, can be cast aside in his view ...)

But even accepting all that, the big gap in his reasoning is the claim that the Court is trumping facts with ideology, when what the Court is actually doing is letting the legislature decide -- within boundaries -- about how to respond to the facts and resolve factual disputes.  On women's regret over abortions, the Court only claims (slip op. at 28-29) that "some women" may regret the decision; that this is relevant to the partial-birth context because recognizing the difficult nature of the subject may keep both doctor and patient from talking about this procedure fully; and most important, that all of this supports a "legitimate" governmental interest in prohibiting the particular procedure.  "Legitimate interest," of course, is the language of rational-basis review with deference to the legislature.  The Court didn't make its judgment on the facts, but let Congress do so, within boundaries.

One of the boundaries of course, following the rules of the Casey decision, was that the Act, even if it served a legitimate interest, not impose an "unconstitutional burden on the abortion right" by prohibiting a procedure "necessary, in appropriate medical judgment, for [the] preservation of . . . the health of the mother."  (slip op. 31)  Rational-basis review wouldn't apply if there weren't alternative abortion procedures, pre-viability, that didn't endanger the health of the mother.  On that question, the Court found, quoting one of the district courts, that there "continues to be division of opinion among highly qualified experts regarding the necessity or safety of intact D&E" (slip op. 32).  Given the medical disagreement, the Court (a) allowed Congress to choose between the competing views and legislate, but (b) only as against a facial challenge -- the Court preserved pre-enforcement as-applied challenges when "it can be shown that in discrete and well-defined instances a particular condition has [occurred] or is likely to occur in which the procedure prohibited by the Act must be used" to protect a woman's health (slip op. 37).

Given the clear language of deference to the legislature, and the reservation of as-applied challenges, Carhart is a decision based on judicial restraint.  Not on judges trumping facts with ideology.

Tom