The Supreme Court upheld the federal late-term abortion restrictions this morning in Gonzales v. Carhart (yes, that Gonzales), with justice Kennedy writing the majority opinion, joined by Roberts and Alito, and Scalia and Thomas, who in a separate concurring opinion basically said Roe v. Wade should be overruled. Justice Ginzburg wrote a blistering dissent, in which Justices Stevens, Breyer and Souter joined. There are excellent commentaries at Scotusblog and Balkinization, as well as observations by Ed Kilgore and pretty much everyone else in the blogosphere.
In terms of the issues we follow here, there are many implications. First, the language used by the majority truly infantilizes women, making it clear that Congress knows better than they how they ought to deal with the kind of desperate situations that call for late-term abortions. And not only does Congress know better than pregnant women, it knows better than the medical profession. For those who thought Justice Kennedy had some intellectual integrity, the majority opinion is a major disappointment. For example, the Act in question made illegal a form of abortion known as "intact dilation and extraction" in which the fetus was extracted, during which procedure it died. There are situations in which that is the medically preferred option. But now women in that position will have only the choice to carry the fetus, with whatever consequences that might entail, or undergo a non-intact d & e, during which the fetus is extracted essentially in pieces. No fetuses are thus saved by this opinion, but some women might suffer serious health problems or even death, because the law survived even without exceptions for the life of the mother. Why? Just to make a point.
Second, abortion is back front and center, despite what Rudolph Giuliani might have wanted. Roe survived, but only because the majority did not explicitly overrule it. What they did overrule, by implication only, of course, was O'Connor's somewhat sophistic "undue burden" test, under which a law survived unless it created an "undue burden" on women. Death is evidently not an undue burden when there is a point to make about abortion. Because Roe survives, there will be new laws passed and new cases filed to test just how far states hostile to abortion can burden a woman's right to choose whether to finish or end a pregnancy. This, in turn, will affect the most those states in which a majority is hostile to abortion. California is not going to outlaw the procedure, or even make it more difficult. New York undoubtedly will not. But other states will, enlarging the gulf between states where science and individual freedom are valued and those which seek comfort in a rigid religious view. The more divided the state, the more contentious will be the debate, perhaps dwarfing other important legislative priorities. As more and more restrictions are placed on abortions, poor and young women and women in rural and exurban areas will suffer the most.
Finally, the Court majority has made it much more difficult to bring what is called a "facial" challenge to a statute. Rather, only a woman who, herself, is directly affected by the restriction can challenge this law as it applies to her. This is of a piece with Chief Justice Roberts' crabbed views of standing--the federal courts are not for little people, but for litigants with serious commercial interests.
As many have said, this case illustrates that elections have consequences, and so does voting for laws and judges, a point now coming hoime to roost for several Dem Senators. My sense is that the decision will help the Dems where they are already strong and not do much for the GOP where it is strong. In the purple states it will marginally help the Dems, particularly, I hope, with young people. Most of all, it makes it crystal clear why Bush should not have another Supreme Court nomination approved by the Democratic Senate. Not one, and not one more federal judge as long as the Bush "Administration" refuses to acknowledge Congress as a co-equal branch of government.