If we want to analyze the impact of Carhart on the future availability of abortion, we have to start with some historical context. Bear with me.

Roe v. Wade was a 1973 decision that created/discovered/acknowledged for the first time that a woman had a constitutional right to an abortion.

That right is not an enumerated right – it is not explicitly listed in the Constitution. The definition of an abortion as a right rests on a chain of “penumbras” or shadows of enumerated rights.

The place to start when rooting out the Constitutional protection of abortion is the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In the 1965 case Griswold v. Connecticut, the Supreme Court ruled that the Fourth and Ninth Amendments created a fringe, or penumbra, which included the right to privacy. Griswold struck down a Connecticut birth control law. The federally established rights (and their penumbra of privacy) were applied using the Fourteenth Amendment.

Originally, the Constitution limited only the Federal government. However, Republicans’ frustrations with the South’s post-Civil War resistance to Black civil rights led to the passage of the Fourteenth Amendment, which said that states may not infringe on federal rights without due process of law. The Cardozo Doctrine, named after a Reconstruction era justice, applied the individual protections of the Bill of Rights to the states (except, some argue, the 2nd Amendment).

Thus, the ruling in Griswold limited states’ invasions of privacy.

In 1973, the court found that the right of privacy established a right to control one’s own reproduction and that state limitations on abortion violated that right. This emanation of the penumbra was eventually extended further in the 2003 Lawrence case that said that control of your own reproduction created a penumbra over private, consensual sexual activity.

Of course, rights are not absolute. You can’t yell fire in a crowded theatre. You can’t publish knowingly false and malicious information (libel).

The Fourth Amendment’s protection against warrantless searches is set aside in pressing circumstances – such as the plain view exception and the emergency/ongoing crime exception. If, for example, you have a meth lab in your garage and the door is up when a patrol car rolls down the road, the fact that the meth lab is in plain sight means that the policeman can stop and arrest you. If the police believe that you have a kidnapped child in your basement, they can burst in to stop the ongoing crime and no court will throw out the evidence they discover.

The right to privacy is limited as well, particularly if you are a public figure.

Roe v. Wade specifically acknowledged that there were limitations on privacy as it applied to the right of abortion and set a standard of viability, which is problematic because medical technology developed since 1973 has gradually pushed theoretical viability earlier and earlier. The issue of personhood cannot be established by medical technology, and this is the crux of the abortion debate. If you believe that a fetus is fully human (ensouled?) at the moment of conception, any abortion is, by definition, murder. The Supreme Court’s arbitrary (even capricious) declaration that personhood begins at viability is unsatisfying to almost everyone.

Deciding how to balance individual rights and societal interest under the constitution is a difficult process. Based on the importance of the right and the strength of societal interest, the Supreme Court uses four levels of review:

1) Rational basis: Can a rational person see that a law is designed to balance a public interest?

2) Intermediate: Between rational and strict

3) Strict: Has three standards that must be met for the right restriction to be constitutional:
a) Compelling state interest (is the consequence of not limiting the right so horrible that a primary purpose of government cannot be achieved)
b) Narrowly tailored (does the law only address the compelling interest or would the restriction bleed into other areas?)
c) Least restrictive (Is there another way to achieve the compelling state interest that would be less restrictive of the limited right?

4) Super-Strict (No, I’m not making this up, even if it does sound like “super-secret double probation”): I’m only aware of it being applied to prior restraint of speech or the press.

When a right is recognized as fundamental – as abortion was in Roe – any state attempts to limit that right is evaluated by the courts using “strict scrutiny.”

In several following court cases that fleshed out the balance between the woman’s right to privacy and the state’s compelling interest to protect a potential child, Sandra Day O’ Conner emerged as the swing vote on interpretations of the right/public interest interface. Her decisions were based on an interweaving of “narrowly tailored” and “least restrictive.” – the “O’Connor Standard” assessed whether a limitation on abortion constituted an “undue burden” on the mother. State legislatures were frustrated by the O’Connor Standard because the word “undue,” when applied to legislation, is an ambiguous benchmark that does not provide clear guidance to state legislatures as to what is permissible. In many ways it was as unhelpful as Potter Stewart’s “I know it when I see it” standard for pornography (Jacobellis v. Ohio).

It is possible to attribute George Bush’s election to the lopsided support of Christian Evangelicals – they certainly take credit for his ascension. And they expect payback. Most Christian Evangelicals believe that life begins at conception, “undue burden” be damned. They don’t want the O’Connor Standard watered down – they want to overturn the whole basis of strict scrutiny and remove the underlying right that creates that scrutiny. They argue that Roe is wrongly decided for the same reason that Dred Scott was wrongfully decided – the court denied the essential humanity of the people affected by its decision.

Christian Evangelicals believed that they had a deal with the White House. Although Bush publicly announced that he would not have a litmus test for judicial nominations, Christian leaders were assured behind closed doors that Bush would appoint justices who respected the culture of life. Bush has had the opportunity to appoint two justices: Alito and Roberts.

When Bush nominated Alito and Roberts, the pro-choice leadership went bat-frickin’ crazy. The appointments were a direct assault on a woman’s right to control her own body. I thought the rhetoric was quite overblown. Both men were justices with a history of accepting stare decisis and Roberts in particular, was a subscriber to the tenant of judicial humility – the idea that courts should avoid sweeping re-interpretations of the law because the pragmatic affect would be to undermine state legislature’s calculations about what was Constitutional. Legal continuity and confidence in that continuity is important on legal, social, and economic levels (recall that O’Connor’s abortion standard, as well as much of her willy-nilly outcome-based jurisprudence was problematic for this reason).

Importantly, Alito had ruled previously on Casey v. Planned Parenthood at the Appellate level. Casey dealt with a Pennsylvania law that required married woman, prior to having an abortion, sign a document stating that they had either informed their husbands or that they had not informed their husbands because they feared abuse.

The majority of the justices at both the appellate and Supreme Court levels struck down the Pennsylvania restriction as being an “undue burden.” When the case was at the appellate level, Alito voted to uphold the Pennsylvania law’s husband notification. In his dissent to the majority, Alito applied the O’Connor standard. He argued that the restriction passed strict scrutiny: protection of the right of a husband to know about the reproductive choices being made within his marriage was a compelling state interest, the stature was narrowly tailored and would not affect unmarried women or anyone else, and was least restrictive because it was not enforced by any state action and had an exception for women who feared spousal abuse.

When Alito was nominated, pro-choice groups went nuts. Alito had voted to restrict abortion! Many pro-choice groups are as absolutist as the NRA is with their support of gun laws. Banning private ownership of shoulder-launched anti-aircraft missiles and flamethrowers is a slippery slope towards banning my home-defense shotgun! Admitting that a husband has a right to know if his wife is aborting his children will lead to the banning of all abortion!

Actually, Alito, in his dissent, explicitly acknowledged that a woman had a right to an abortion. He also recognized that no rights were absolute. Pro-choice folks who actually read the Casey decision were not that alarmed – but they may have pretended to be in order to get the rank and file stirred up. Pro-life folks who actually read the Casey decision should have been upset – but were (probably) privately assured by the White House that Alito was pro-life and would feel freer to strike down Roe when he was promoted to the top level.

Roberts’ history of judicial humility and respect for precedent should also have alarmed the religious right. Again, we don’t know what was said in closed-door meetings that the White House held with Evangelical leaders, but one can assume that the administration held out the promise that Roberts would be less “humble” when he was appointed.

Evangelicals were rightfully alarmed when Roberts’ first major address after becoming Chief Justice stressed the virtue of judicial restraint/humility. Still, hope springs eternal.

Pro-life hopes rest not on gradual restrictions (though they’ll take what they can get), but on a radical departure from precedent and a judicial shift comparable to Brown v. Board – a direct repudiation of previous precedent.

As an interesting aside, it is highly doubtful that non-Evangelical Republicans actually want Roe overturned. Anger over the injustice of Roe is the glue that binds the religious right to their party. If Roe were to be overturned, pro-choicers would be energized. Many middle of the road people would balk at absolute prohibitions (“What if my daughter gets raped?”). But Evangelicals long for the reversal of Roe.

They pinned their hopes on the idea that Alito and Roberts would accept that fetuses were human and that their right to not be murdered trumped a woman’s penumbra/emanation/shadow of privacy. Carhart would be the test case.

The Republican majority in Congress had passed a federal ban on partial-birth abortions. Partial-birth abortions are exceedingly rare. But the image of partial-birth abortions wields an outsized influence on the public imagination. Most Americans, regardless of their stance on the ensoulment of a fertilized egg, get sick to their stomach when contemplating the dismemberment of a seven-month fetus. The Republican majority could pass this bill to establish their pro-life bona fides prior to Congressional elections without restricting access to abortion in any meaningful way – maintaining the status quo and not risking the political consequences of a direct challenge to the core abortion right.

Interestingly, in order to pass the ban, Republicans had to accept a very broad definition of interstate commerce – allowing different states to set different partial-birth standards would create interstate commerce as five women per year would cross state lines into a jurisdiction allowing them to have this exceedingly rare procedure. This isn’t new – the Republican administration made the same argument about privately grown medicinal marijuana in Gonzales v. Raich. Liberals are being hoisted on their own elastic-clause petard.

Carhart v. Gonzales challenged the restriction of partial-birth abortion. This case offered the opportunity to see if Alito and Roberts would abandon their appellate-level acceptance of the O’Connor standard and replace it with an acknowledgement of the personhood of the fetus.

They didn’t do that. They joined the majority and upheld the ban on partial-birth abortion – but they did so not based on the personhood of fetuses but by using the O’Connor standard – they ruled that the ban did not place an undue burden on a woman. If you want an abortion, you can have it earlier.

For slippery-slope pro-choice absolutists, this was alarming. Pro-choice folks are raising all kinds of hell. One suspects that some of them have read the ruling and are privately happy that Alito and Roberts aren’t likely to become the swing votes in a Brown v. Board type of decision. But they do have to rile up the troops. “Armageddon!” gets people more riled up than “Defeat for absolutism but victory in the big picture!”

One can’t get too annoyed at the partisans in this debate. We do, after all, live in a Jacksonian democracy in which the ignorant and easily riled mob controls the outcomes of elections.

I am annoyed at the media. Journalists who report shouldn’t just parrot the press releases of the combatants. Journalists should at least read the decision. And it is clear – at least to this humble poorly educated agrarian – that Carhart solidifies the body of jurisprudence that accepts abortion as a fundamental right.

I did speak to one lawyer (and thus someone more familiar with how court cases work than I) who made the argument that additional precedents do not make it harder to overturn the original precedent. This line of argument says that Alito and Roberts may yet be willing to acknowledge the rights of the fetus in a future case and accepted this narrow restriction on the grounds of undue burden in order to assure a majority.

While acknowledging the greater expertise of this lawyer, I’m not convinced.

First of all, either man could have signed on with the majority and then issued a concurring opinion which stated that they accepted the ban because there was no fundamental right to an abortion at all.

Secondly, it strikes me as being intellectually dishonest. We are assuming that since neither Alito nor Roberts wrote a separate concurrence, their internal monologues went something like this: “There is no fundamental right to an abortion. Now that I’m on the Supreme Court, I am freed from appellate constraints and can save the lives of these murdered children. But not yet. I’ll sign my name to a document that says that abortion is a fundamental right than can only be limited under the strict scrutiny standard and then bide my time until I can strike down Roe in its entirety”

I have seen no suggestion that either Roberts or Alito is intellectually dishonest. Whether you agree with them or not, they have the reputation for being thoughtful, honest thinkers. Even if they were dishonest, if they do believe that a fetus has personhood, the accusation of dishonesty also makes them complicit (in their minds at least) in all the abortion-murders that take place between Carhart and some future case that can be used to strike down Roe in toto. I just don’t buy it.

Of course, take my analysis with a grain of salt. You wouldn’t trust a Constitutional scholar’s composting recommendations, so why should you accept the constitutional analysis of an organic farmer?