The Supreme Court’s Shift on Abortion is Not What You Think

The New Republic, April 30, 2007

The Supreme Court’s recent partial-birth abortion decision solidifies a big shift in abortion law–but probably not for the reason you think. The most important language in the opinion does not substantively alter the scope of the right to choose, nor does it expand the right to life. It is not the absurd language by Justice Anthony Kennedy that so infuriated many feminists by suggesting that states could justify abortion restrictions by the need to protect women from the consequences of their choices. A reader not steeped in the peculiar corner of American constitutional law that deals with abortion would not necessarily even notice it. It is a terse, legalistic section with significant—and, I suspect, constructive—implications for the future politics of abortion in America:

“The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider [health] exceptions is by as-applied challenge. … This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.”

I know what you’re asking: What on earth does this mean? Let’s back up and unpack it.

In general, there are two ways to attack a law as unconstitutional. You can attack the whole law in what’s called a “facial challenge” and try to get the entire law struck down. Or you can argue that the law, while perhaps generally constitutional, is unconstitutional when applied to you under a particular set of circumstances. The current challenge to the partial-birth law challenged it on its face. In most situations, the Court will not strike down a law on a facial challenge if constitutional applications of that law exist. The idea is that a law that’s constitutional most of the time should not be invalidated because one can imagine circumstances in which its enforcement would violate someone’s rights. As a consequence, laws are routinely upheld against facial challenge but then subjected subsequently to narrower “as-applied” challenges. One current example: The Court upheld the McCain-Feingold campaign finance law’s restrictions on sham “issue ads” that are really election commercials, but it recently heard arguments from a group that contends that its issue ads are real, not shams, and that the law is thus stifling its legitimate speech.

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