The World Turned Upside Down

GENERIC: Abortion, Supreme Court, Roe Wade, Justice, Scales
Attorney Andrew Cohen analyzes legal issues for CBS News and

Your state legislature holds colorful hearings on a topic of great emotional import and then passes a controversial law. It is immediately challenged by its opponents, and three separate trials are held to determine whether the factual findings made by the legislators are legitimate and supportable and capable of justifying the restriction of certain recognized rights contained in the measure.

After long and complex trials at which many experts testify, three experienced and respected judges determine based upon the best evidence available that the legislative findings are not warranted and that the law unconstitutionally infringes upon important rights. Three appeals are taken and all three appellate courts agree that the measure must be struck down because the legislature was unable to legally justify its actions. The matter then goes to the state's highest court.

There, the judges by a one-vote margin over a stinging dissent reverse the lower courts and uphold the law. The high-court judges say that even if there are disputes about the strength of the evidence supporting the measure, the legislature has a right to impose its judgment and enact the law. To do otherwise, say the judges, would require a mercurial unanimity of opinion that simply doesn't exist in the real world. As for the conclusions of the lower courts, the high court's majority says it merely proves a level of "uncertainty" that should not by itself stop the law from going into effect. Case closed.

If you think this scenario is odd — if you are scratching your head as to how and why the "high court" in it would have done what it did — then welcome to the world of Gonzales v. Carthart, the seminal abortion ruling handed down Wednesday by the United States Supreme Court. A 5-4 majority on the court upheld the Partial Birth Abortion Ban Act of 2003, despite the fact that every lower federal court that had looked at the issue had determined that there was no factual justification for federal intervention that criminalizes this medical procedure and subjects to prison time doctors who perform it, even when they believe it is necessary to protect the health of the woman involved.

Justice Anthony M. Kennedy, writing for the majority, made no secret of the fact that the Congressional findings supporting the law were not by themselves strong enough to be "dispositive" in allowing the Court to conclude that the law did not place "an undue burden" upon women seeking this particular kind of abortion based upon the medical advice of their doctors. Instead, Kennedy wrote, "the evidence presented in the trial courts and before Congress demonstrates that both sides have medical support for their position."

He then wrote that since the three trial judges had disagreed about the reasons why (not whether) Congress' proposed ban upon the procedure would impose an undue burden upon women, there was "medical uncertainty" about the necessity for the procedure in certain circumstances. And that allowed him to declare that, since "the Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake," the majority was free to disregard the conclusions of the trial judges in these three abortion cases and reach its own, contradictory conclusion. "The medical certainty over whether the Act's prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden" on women by omitting the "health exception."

So extraordinary is the majority's disregard for the judicial processes that preceded it, and so sharply does it upset long-established precedents when it comes to how to handle legislation where "uncertainties" exist, that the normally placid Justice Ruth Bader Ginsburg practically smoked her way through her dissent, reading it from the bench as a way of highlighting her "alarm" at the scope of the majority's ruling. "Each of the district courts to consider the issue rejected Congress' findings as unreasonable and not supported by the evidence," Ginsburg wrote, and "those findings merit the Court's respect."

Instead, however, Ginsburg wrote, the majority's opinion "supplies no reason to reject those findings" and then asserts that the Act can survive when medical uncertainty exists. "This assertion is bewildering," Ginsburg wrote, because "not only does it defy the Court's longstanding precedent affirming the necessity of a health exception," it also turns existing case law on its head by allowing restrictive legislation that flies in the face of "significant medical testimony" supporting the proposition that in some circumstances the procedure "would be the safest procedure."

In other words, Ginsburg is saying, even assuming as the majority does that there is a perceived "tie" in the scope and weight of the medical and scientific evidence over the legitimacy of this procedure, that tie ought to be resolved in favor of fewer, not more, restrictions on the practice. Otherwise, she noted, the court would be required to restrict rights whenever there is a difference of opinion about the ultimate factual issues involved in a controversial matter like this one.

Take abortion out of the equation. In the end, you have the Supreme Court's most conservative members agreeing to overturn the consistent results of three trial court judges, and three federal appeals court panels, and siding with Congress and its "findings," even though the Court's majority candidly conceded that those findings, alone, were not enough to justify the constitutionality of the Act. So bizarre is this scenario, so contrary is it to the way the Supreme Court operates, that I do not anticipate it unfolding again in our lifetimes. So I cannot blame Justice Ginsburg for scratching her head at the logic and rationale offered by five of her colleagues on the bench.

By Andrew Cohen