BY PRISCILLA J. SMITH

In Gonzales v. Carhart, the Court reversed course from Stenberg v. Carhart, a decision issued just seven years before and, in a 5-4 decision written by Justice Kennedy, upheld the “Partial-Birth Abortion Ban Act of 2003” (“the Act”). As counsel for the losing side in Gonzales v. Carhart, I joined in bemoaning the decision and what I saw, and still see, as the misapplication and betrayal of many of the principles of Planned Parenthood v. Casey. There is certainly much to decry about the opinion. However, in the months that have passed, I have begun to ask myself what is left. Can we see the glass as half-full nonetheless?

The good news is that there is much in the opinion that reaffirms the Casey framework, and much of that framework remains viable and intact. Specifically, this paper argues that Carhart eliminates neither the core decision-making aspect of the right to abortion, nor the rule that a state may not restrict access to abortions that are “necessary, in appropriate medical judgment, for preservation of the life or health of the mother.” I also argue that the language in Carhart about preventing women from regretting their abortions is sui generis, limited to method bans, like this one, which: 1) the Court believes ban only the intact D&E method of abortion, a procedure the Court finds disgusting and completely without merit for health or any other reasons; and 2) the Court believes would impact only a tiny percentage of abortion procedures, all of which can still be performed by an alternative procedure which the Court believes is just as safe. It is only in these circumstances, and where a regulation does not otherwise impose an undue burden, that “the State may use its regulatory power to bar certain procedures and substitute others.”

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