Thank God for Justice Alito.
Thank God for Justice Roberts.
Todayâ€™s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey,between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womanâ€™s health.
Ultimately, the Court admits that â€œmoral concernsâ€ are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (â€œCongress could â€¦ conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.â€). Notably, the concerns expressed are untethered to any ground genuinely serving the Governmentâ€™s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (â€œSome of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.â€); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though â€œ[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,â€ the power of the State may not be used â€œto enforce these views on the whole society through operation of the criminal law.â€ (citing Casey, 505 U. S., at 850)).
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from â€œ[s]evere depression and loss of esteem.â€ Ante, at 29.7 Because of womenâ€™s fragile emotional state and because of the â€œbond of love the mother has for her child,â€ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28â€“29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (â€œStates are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.â€). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9
Today, the Court blurs that line, maintaining that â€œ[t]he Act [legitimately] appl[ies] both previability and postviability because â€¦ a fetus is a living organism while within the womb, whether or not it is viable outside the womb.â€ Ante, at 17. Instead of drawing the line at viability, the Court refers to Congressâ€™ purpose to differentiate â€œabortion and infanticideâ€ based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. Â§1531 (2000 ed., Supp. IV), p. 769).
One wonders how long a line that saves no fetus from destruction will hold in face of the Courtâ€™s â€œmoral concerns.â€ See supra, at 15; cf. ante, at16 (noting that â€œ[i]n this litigationâ€ the Attorney General â€œdoes not dispute that the Act would impose an undue burden if it covered standard D&Eâ€). The Courtâ€™s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label â€œabortion doctor.â€ Ante, at 14, 24, 25, 31, 33. A fetus is described as an â€œunborn child,â€ and as a â€œbaby,â€ ante, at 3, 8; second-trimester, previability abortions are referred to as â€œlate-term,â€ ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as â€œpreferencesâ€motivated by â€œmere convenience,â€ ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a â€œrationalâ€ ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Caseyâ€™s principles, confirming the continuing vitality of â€œthe essential holding of Roe,â€ are merely â€œassume[d]â€ for the moment, ante, at15, 31, rather than â€œretainedâ€ or â€œreaffirmed,â€ Casey, 505 U. S., at 846.
Thank God for the Re-Election of President George Walker Bush.
PS: Remember my mock report of the imposition of Curia on the Untied States? Well, the Kos Kids aren’t joking.