I’m not convinced that this week’s Supreme Court decision on partial-birth abortion is as good as Justice Ruth Bader Ginsburg says it is, but I certainly hope she is right. She says it is alarming; it reflects manifest hostility to the unlimited abortion license imposed by Roe; it supports judicial deference to the legislative branch; it permits moral and ethical considerations to impinge upon law; it treats sympathetically such traditional notions as a mother’s love for her child; and it is a first step toward reversing the abortion regime established by Roe. As I say, I hope she is right, but I expect she may be exaggerating somewhat.
Nonetheless, the Carhart decision is to be warmly welcomed. (It seems to be generally agreed that the decision will be referred to as Carhart rather than Gonzales.) Commentaries on the decision abound, and we will have a thorough analysis in a forthcoming issue of the magazine. Michael Uhlmann’s posting here yesterday provided a valuable overview of abortion jurisprudence since Roe, and there is nothing in it with which I would disagree, although I do think more attention might be paid some of the more promising aspects in Justice Kennedy’s majority opinion. And I am one with Joseph Bottum on the additional points he made yesterday, except it seems to me that the response to Carhart from the many institutions of the pro-life movement, including Justin Cardinal Rigali’s official response on behalf of the bishops conference, is considerably more positive than he suggests. And rightly so.
Justice Kennedy’s 5-4 majority opinion is notable for accenting the society’s legitimate, indeed imperative, interest in protecting innocent human life. That interest had received lip service in Roe and its judicial offspring, but this time it is an operative, albeit not a controlling, concern. President Bush hailed Carhart as bringing us closer to the goal of “a society in which every child is welcomed in life and protected in law.” A very little bit closer to a goal still painfully far away.
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In reporting Carhart, the New York Times lede declared that the Court “reverses course” on abortion. That is true in a limited sense. Justice Ginsburg is correct about the differences between this decision and prior decisions in which the Court upheld pitifully minor regulations in the exercise of the abortion license. To be sure, there are no guarantees, but Carhart gives reason to think that Ginsburg’s fears may be vindicated and the abortion regime may be on its way, a painfully slow way, toward extinction.
While the carnage continues, there is no place for false hopes or counsels of despair. It is not, I believe, a false hope to think that this week’s decision has brought us a little closer to the goal—never to be realized fully within the limits of history—of a society in which every child is welcomed in life and protected in law. There will always be some abortions, as there will always be other forms of homicide, along with rapes, child abuse, and similarly grievous crimes. But the law—in its pedagogical, protective, and punitive functions—can discourage and prevent such great evils. Carhart has made that prospect a little more visible on the still distant horizon. Read it all at First Things
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