Althouse on partial birth abortion and emotional arguments

Ann Althouse and Amy Sullivan are the latest BloggingHeads, and spend some time discussing the partial-birth abortion case that made it to the Supreme Court this last week. While I find much to disagree with therein, I don't really take Sullivan seriously enough to bother responding to her comments. I take Ann a great deal more seriously, however, and so, despite my great respect and affection for her, I must very respectfully, but strenuously, dissent from her comments on the case.

Ann frames the question in these terms: "isn't calling it a 'late-term abortion' inaccurate? I mean, isn't the whole point of the case that there are two ways of doing a late-term abortion, and that the case is really about whether one of the two ways is going to be prevented?" If Ann's complaint is that FPBAA simply bans one method and forces the other, that might be a credible argument if Ann's point was that the inconsistency should be resolved by legislatively expanding rather than judicially overruling FPBAA. Given that the political and legal climate surrounding abortion laws - a climate which Ann wishes to sustain - demands a step-by-step, incremental approach, to criticize a statute for not going far enough to be consistent with its authors' beliefs is quite simply absurd.

She notes later that one procedure is more dangerous, echoing a theme that Ann sounded explicitly earlier in the week:

You have to face the fact that breaking up the fetus within the uterus creates dangerous fragments. I understand that a lot of people find both procedures monstrous. But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?

Stirring, emotive language! And yet:

the picture in people's heads [of partial-birth] abortion is so powerfull, so emotionally moving that the idea of focussing on the actual issue in the case seems to be something that people think is just cold ... [The case] isn't about whether the fœtus is going to die or not, but whether the woman has to have one procedure or another, when the one she's being denied could be one that could puncture her uterus, or cause her not to be able to have another [child].

There is a disconnect here: Ann seems to criticize abortion opponents for falling prey to powerful emotional arguments and imagery of what does happen to the child, yet still wants to retain the full run of emotive language and imagery to focus our attention on what might happen to the mother.

And then, the comment that particularly irked me:

A lot of times in law, you feel like when you're presenting something in a legal form, you're kind of sacrificing your humanity, where is your human warmth if you want to say "look, there's actually a specific legal issue here and we need to concentrate on that." And I feel cornered, like, if you want to talk about it in a legal way, it shows your inhumanity.

This would be galling enough, since without emotive arguments, this case would never even be at the Supreme Court, but it's almost unbearable when coming from someone who has criticized "the [Supreme] Court’s willful exclusion of emotion and real context from its decisions" in the context of the death penalty.1 I readily agree with Ann that the commenters at her blog post who want to jump straight to the normative question of abortion in a debate about court cases are missing the point (and they are, to be sure, the majority: I was as frustrated with the other commenters' concession of the premise as I was with Ann), but by the same token, Ann's attempt to remain focussed on the narrower procedural question is also too broad, and no less surely misses the point. To drain the emotional content out of the abortion cases, in my view, rejects the entire underlying framework of involving the normative discussion of abortion (or of any specific discussions of methodology, as Ann prefers), in a court case about abortion. If Ann wants to "drain the swamp" of emotive content in the abortion cases, I fully agree - but to do so, in my view, would have precisely the opposite result to that which Ann wants, which is to say, it would take the courts entirely out of the abortion business and return the question to the states where it belongs.

Part of the problem with resolving this issue is that the cases themselves present an imperfect vehicle for the judiciary to discharge their duty to say what the law is.2 Although my views on the Constitutionality (or rather, lack thereof) of FPBAA are well-documented, in these cases, the Petitioners and Repondents have mutually conceded that question is a facial challenge3 to FPBAA within Stenberg's framework. Within the context of the Chief Justice's confirmation hearings metaphor of an umpire calling the balls and strikes - the trendy Cass Sunstein "minimalist" ideal - the Court is being put in the awkward position of deciding not the Constitutionality of FPBAA, but whether it is unconstitutional in the precise manner the petitioners ask.

I have previously noted my skepticism that the Chief Justice is really a minimalist, but on the other hand, for better or worse, I'm also on-record as sympathizing with the minimalist view in this case. I am anything but a minimalist, but concede that the power to strike down legislation is the most awesome power granted to the Supreme Court, and it should be used prudently, responsibly, and "only upon a plain showing that Congress has exceeded its constitutional bounds."4 If for no other reason than out of judicial restraint5 and respect for a co-ordinate branch of government, there is a fairly strong case that the Court should not sua sponte convert a facial challenge into an as-applied challenge on grounds briefed and argued by neither party, nor - so far as I have been able to discover - urged by any amici.

On the other hand, I would suggest that in an area so singularly important and disruptive to the nation, perhaps that advice is not so sound.6 Perhaps the Supreme Court should take Ann's advice ("there's actually a specific legal issue here and we need to concentrate on that"), and recall Chief Justice Marshall's Marbury dictum that it is not only the province, but the duty of the judiciary to say what the law is.7 Before courts can proceed to the merits of a case, they must begin with finding that parties have standing,8 that the court has jurisdiction,9 that the case is ripe,10 and so on; it must examine those questions regardless of whether they are raised by litigants. In other cases, the court assumes without deciding the validity of a statute if the challenge can be resolved without contradicting that assumption.11 But in these cases, I'm not so sure it can or should be assumed without deciding that the Constitution protects a right to abortion, for if it does not, the plaintiff's case collapses. I would anticipate Ann's rejoinder to be that if one assumes that, regardless of what one thinks the Constitution might say, we have to procede under the assumption that the question has to be evaluated in terms of certainly Casey, and probably Stenberg, but I do not concede that premise. If Stenberg mandates that Carhart prevail in this case, Stenberg should be overruled, and if (as, to my reading, Ann has previously asserted) Roe, Casey and Stenberg are a package deal, that each case compells the results in the successive case, then they should go too.

In my view, dispassionately and coldly saying what the law is would mean rejecting this challenge, rejecting Ann's (and Counsel's) specious, emotional arguments about specific procedures, overruling Stenberg, and declaring that the matter - when stripped of the emotive content that Ann claims to find so troubling - becomes clearly and obviously a matter purely for the states.

The irony in all this is that Ann and I completely agree that FPBAA is unconstitutional, but at the level of the Supreme Court, the reasoning matters at least as much as - and possibly more than - the result.12 Ann's belief in the continuing vitality and validity of the Court's involvement in the area of abortion leads her to conclude that this statute must fail under Stenberg; my continuing belief in the limited power of the Federal government in general and Congress in particular leads me to conclude that (a) Congress lacked the power to pass this statute in the first place, but that (b) courts lack the power to strike down similar state laws. Thus, it would probably make little difference to the outcome of this case whether sat on the bench Justice Althouse or Justice Dodd, but as we all know, at the level of the Supreme Court, a case is never about just the outcome of that case.13

I also completely agree with Ann that whether it makes us "cold" or "inhumane," we - and the courts - should focus on the actual legal issues. The legal issue -- and it seems inescapable -- is this: what does the Constitution of the United States say about abortion? If we ignore the emotional arguments by pro-choicers about what it might or could say, the very kind of arguments Ann rejects when offered by pro-lifers, it says nothing at all. And I think that there is good reason to think that the court can, and should, resolve these cases by just finally admitting it.

As always, I find a lot to agree with in what Ann says, but somewhat more unusually (although I have never hesitated to voice disagreement with her before, and doubt I will fail to do so in the future), in this particular case, I think that at very least, she is falling into the same trap as her commenters, because she has misunderstood what the trap is.

Update, 11/14/06: See also this post.

1. 1. Ann Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177, 1178 (1991).
2. 2. Marbury v. Madison, 5 U.S. 137, 177 (1803).
3. 3. A facial challenge is one in which petitioners assert (and must prove) "that no set of circumstances exists under which the Act would be valid. The fact that ... [a particular law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." United States v. Salerno, 481 U.S. 739, 745 (1987). But see Janklow v. Planned Parenthood, 517 U.S. 1174, 1175 (1996) (Stevens, concurring in denial of cert) (rejecting the first sentence quoted from Salerno above as dicta "unsupported by citation or precedent" and "unnecessary to the holding in the case, for the Court effectively held that the statute at issue would be constitutional as applied in a large fraction of cases"). Cf. id. at 1180 (Scalia, dissenting from denial of cert). The alternative standard, urged by Justice Stevens, and which appertains particularly to abortion cases, is implicit in Casey, which found it sufficient grounds to facially enjoin a Pennsylvania abortion regulation that "in a large fraction of the cases in which ... [the statute is applied], it will operate as a substantial obstacle to a woman's choice to undergo an abortion ... and [is] therefore invalid." Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992).
4. 4. United States v. Morrison, 529 U.S. 598, __ (2000)
5. 5. Although, ironically enough, Althouse has herself observed, in a section titled "The False Virtue of Restraint" that:

   Freestanding notions of judicial restraint should not foreclose inquiry into whether courts will enforce federalism values. The tradition of judicial restraint and deference to Congress emerged along with normative and pragmatic reasons for supporting it. Moreover, Justices who endorsed judicial restraint in Commerce Clause cases have not been proponents of judicial restraint in all cases: when individual rights were asserted, vigorous activism has won approval. Rare are the Justices who make judicial restraint the starting point for all legal analysis. In any event, such a position contravenes the basic duty of the judiciary "to say what the law is."

   Ann Althouse, Enforcing Federalism After United States v. Lopez, 38 Ariz. L. Rev. 793, 813 (1996)(emphasis added).

6. 6. See comments here et seq. discussing why stare decisis cannot protect Roe and why that case is so singularly in need of being overruled.
7. 7. But see Ann Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. Rev. 929, 940:

   [Marbury states that] it is emphatically the province and duty of the judicial department to say what the law is." And then [Marshall] adds, "those who apply the rule to particular cases must of necessity expound and interpret that rule" ... [T]he first sentence emphasizes the special role of articulating the law, a role tied to the courts' disinterest and neutrality as compared to, say, Congress, which Marbury characterized as an inappropriate interpreter of the constitutionality of its own statutes. The second sentence emphasizes the need for a context to provide an appropriate occasion for saying the law: judges say the law because they have to in order to resolve a specific dispute between parties ... Both notions exist side by side in Marbury, without obvious contradiction[,] [b]ut later jurisdictional disputes can often be characterized according to which notion has seized the imagination of the Court.

   (Footnotes ommitted). In this case, as in Marbury, one could argue that both sentences are apt. The Courts have a duty to say what the law is, and doing so would resolve the specific dispute between the parties to this case.

8. 8. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
9. 9. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 94–95 (1998).
10. 10. Texas v. United States, 523 U.S. 296 (1998).
11. 11. See, e.g., Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 548 U.S. __, __ (2006) ("Because we conclude that Sanchez-Llamas and Bustillo are not in any event entitled to relief on their claims, we find it unnecessary to resolve the question whether the Vienna Convention grants individuals enforceable rights. Therefore, for purposes of addressing petitioners’ claims, we assume, without deciding, that Article 36 does grant Bustillo and Sanchez-Llamas such rights").
12. 12. "Constitutional cases serve two broad goals: they provide relief to those deprived of their rights, and they announce rules of law. They speak to the parties to the case and they speak to the rest of society. Cases are disputes that the courts must address, but they are also occasions for saying what the law is." Althouse, Saying What Righs Are, supra, at 939; cf. Frank Easterbrook, The Supreme Court, 1983 Term: Foreword, 98 Harv. L. Rev. 4, 5 (1984).
13. 13. For better or worse, the Supreme Court's "role in the legal system changed in 1925, when it gained from Congress the discretion to pick and choose its own cases. [Thereafter,] [t]he Supreme Court was no longer the court of last resort for private disputes; the justices could turn down those cases to concentrate on legal issues with broad national implications. With the grant of Supreme Court review a scarce resource ... the stakes for each carefully chosen case grew higher. The justices were not simply resolving particular disputes but superintending the development of the legal system as a whole." Linda Greenhouse, Ideas & Trends: Divided They Stand; The High Court and the Triumph of Discord, 7/15/01, in THE NEW YORK TIMES, p.4.