Two years ago, the Supreme Court, in Gonzales v. Carhart, 550 U.S. 124 (2007), upheld the Partial Birth Abortion Act of 2003, relying on pure emotion and hopelessly flawed science to conclude that late-term abortions were never necessary to preserve the health of the mother. Today, in Richmond Med. Ctr. v. Herring, the Fourth Circuit compounds this mistake by upholding a mirror Virginia act that tacks on criminal penalties for doctors who may, without knowledge, accidentally perform the forbidden procedure.
Recall – as the dissent points out – that the Supreme Court in Gonzales punted on the scientific issue, resolving a 2% doubt as to the necessity of the procedure against the majority and against the affected women:
[T]he [Supreme] Court considered whether the Federal Act imposed a substantial obstacle to late-term, pre-viability abortions by failing to include an exception to preserve the health of the woman. Id. at 161-67. The Federal Act contains a life exception, 18 U.S.C. § 1531(a), but not a health exception. The Court noted that “whether the Act creates significant health risks for women [was] a contested factual question.” Id. at 161. As a result, the Court held, “[t]he [Federal] Act is not invalid on its face” for lack of a health exception because “there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures,” such as the standard D&E, “that are considered to be safe alternatives.” Id. at 167. In the face of this medical uncertainty, only as-applied challenges to the Federal Act’s lack of a health exception may be pursued. Id. at 167-68. (Michaels, J., dissenting – see p. 44 of slip PDF.)
My argument to this effect is fairly extensive and currently unlinkable: I’ll link when my article on it is published (soon).
Obviously, the failure to correct this error can’t be blamed on the Fourth Circuit. It’s not their job to overturn bad Supreme Court decisions, and the issue wasn’t squarely presented in this case in the first place. But the Fourth Circuit was not obligated to expand upon shaky precedent by allowing criminal liability at a lower standard. Decisions such as this make it all the more essential that the U.S. Congress quickly amend the Partial Birth Abortion Act to add a necessary exception for the “health of the mother,” even if this won’t help Virginia doctors. Some day.
Quite apart from its outcome, the current Fourth Circuit panel is (or should be) well known for wrapping important decisions in genial, philosophical discourses on the nature of law and fundamental liberties (read their Al Marri opinion for an example), and this case is no exception. Even if you disagree with the outcome, as I do, the full set of opinions is well-worth a read.
Judge Wilkinson, a brilliant and very conservative jurist, couches his concurrence in explicitly moral and emotional terms. Because of his eloquence, I’ll forgive him the obvious inconsistency of an originalist looking to emotions (“empathy”?) for guidance:
The future, however, will not be similarly misled. The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will
look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder. [. . . ]Such treatment of the truly helpless will not stand the test of time. Virginia’s statute invokes the consent of the governed to soften the sting of the impending rebuke. Our invocation of precepts found nowhere in the Constitution’s text or history will not provide us a comparable defense. Where the people’s will and moral claims on behalf of the powerless are aligned, plying the Constitution to defeat both is a wrong future generations will not overlook. (Wilkinson, J., concurring in the judgment – see pp. 33-34 of slip PDF)
Contrast this with Judge Michael’s rejoinder:
Judge Wilkinson writes a concurrence to record his obvious disagreement with 36 years of Supreme Court jurisprudence on the issue of abortion. In doing so, he goes beyond our warrant as an inferior court, which is to apply the Constitution as the Supreme Court has interpreted it, and exceeds our role as a court of law, which is to adjudicate legal, not ethical, questions.
Moreover, the moral dimensions of the abortion debate are significantly more complex than Judge Wilkinson acknowledges. He fails, for example, to fully recognize that a woman’s decision whether to bear a child involves “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Casey, 505 U.S. at 851. The freedom to make that decision ensures that a woman has control over her body and the conditions of her life, including her ability to protect and nurture her family, to overcome financial hardships, to leave abusive relationships, and to make critical decisions about her own health and well being. As the Supreme Court recognized in Casey, “[m]en and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage.” 505 U.S. at 850. In the face of that disagreement, however, the Supreme Court went on to confirm a woman’s constitutional right. Our duty here is to measure the Virginia Act against that precedent, not revisit the debate. (Michael, J., dissenting – see pp. 59-60 of slip PDF)
I’ll give this round to Michael.
Discussion
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