Guarding the Threshold of Birth

Abstract

This Article examines the Supreme Court's recent decision to uphold the Federal Partial-Birth Abortion Ban Act of 2003 (PBABA) in Carhart v. Gonzales (Carhart II), and suggests that, despite some flawed analysis, the majority reached the proper conclusion. Section II emphasizes that two dimensions of the abortion debate, spatial and temporal, should be viewed in conjunction. While the Court historically has focused exclusively on the temporal dimension (the age of the fetus), Carhart II signals a dramatic shift by not only its recognition of, but its singular focus on the spatial dimension (where fetal demise occurs). Section III continues by examining the Court's reasoning in Stenberg v. Carhart (Carhart I), and how the majority failed to consider both the spatial and temporal dimensions adequately. This section also highlights Justice Kennedy's Carhart I dissent, and the three important government interests he emphasized. Section IV analyzes Carhart II and the Court's decision to uphold the PBABA, arguing that the opinion is consistent with the controlling standards for abortion regulations, as outlined in Planned Parenthood v. Casey. Although the majority attempts to circumvent any direct reversal of Carhart I, this section contends that Justice Kennedy's Carhart II majority opinion is constitutionally correct for the same reasons that his Carhart I dissent was constitutionally correct. Specifically, the PBABA does not create an undue burden on a woman's right to obtain a pre-viability abortion. Further, the unique interests at stake, both spatial and temporal, in post-viability applications of the PBABA justify the Court's decision to not require a health exception. Section V considers in greater detail the important governmental interests emphasized in Justice Kennedy's Carhart I dissent and Carhart II majority, which are also highlighted in the PBABA. First, government has an important interest in protecting fetal life from the outset of pregnancy. This interest was emphasized in Roe, reaffirmed in Casey, and its status has been solidified by Carhart II. Second, government has an important interest in safeguarding the integrity of the medical profession. This interest has been discussed in various contexts. Two such contexts, assisted suicide and involuntary medical treatment of death row inmates, are discussed as comparisons. Third, and most importantly, government has an interest in drawing a clear line between abortion and infanticide. While abortion is secured as a constitutional right through the Court's jurisprudence, neither the Constitution nor the laws of the United States should ever condone infanticide. By examining the historical consensus favoring infanticide and contemporary support for it, this section argues that the government has the constitutional authority, as well as the moral and ethical duty, to draw a clear line between the two procedures.