April 18, 2014
When Justice Samuel Alito replaced Justice Sandra Day O’Connor on the Supreme Court, conservatives across the country were hopeful that the change would effect a rightward shift in the Court’s jurisprudence.
The wait wasn’t too long before this came to pass: on April 18, 2007, just over a year after Alito was confirmed by the Senate, the Supreme Court ruled in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003.
Why does Carhart signify a rightward shift in the Court’s ideology? Because less than seven years earlier, the Supreme Court struck down another ban on so-called “partial birth abortion” procedures in Stenberg v. Carhart.
The vote in Stenberg was five to four, with Justices Breyer, Stevens, O’Connor, Souter, and Ginsburg in the majority, and Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas in the dissent. The vote in Carhart, on the other hand, was also five to four, but with Justice Kennedy writing for the majority, and joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The Carhart dissent was written by Justice Ginsburg, and was joined by Justices Stevens, Souter, and Breyer.
In other words, Justice O’Connor’s vote in Stenberg went the other way in Carhart thanks to her replacement by Justice Alito.
Are the two cases truly comparable, though? Let’s take a look.
In Stenberg, LeRoy Carhart, an abortion doctor specializing in late-term abortions, challenged the constitutionality of a Nebraska state law that banned the specific method of abortions called “dilation and extraction” (“D&X”) – more commonly referred to as “partial-birth abortions.”
Carhart won at both the district court and appeals court levels, and the Supreme Court agreed to review the case. The Court found the statute unconstitutional because the statute lacked an exception “for the preservation of the…health of the mother,” as required by 1992’s Planned Parenthood v. Casey.
The Court further held that the wording of the Nebraska statute was vague such that it could be interpreted to include other abortion procedures in addition to D&X ones.
The law at issue in Carhart (the challenge to which was also brought by LeRoy Carhart) was a federal one rather than a state one. According to the Supreme Court in Carhart, however, the federal ban did not suffer from the same vagueness that contributed to the Nebraska law’s invalidation in Stenberg. Nevertheless, the federal ban does not contain any exceptions for cases in which the mother’s health is in danger – just as Nebraska’s law in Stenberg failed to do so.
Somehow, this didn’t matter to the Supreme Court in Carhart – for the first time since abortion was legalized in 1973, the Court upheld a law banning abortion that didn’t contain an exception for the health of the mother.
Considering its close proximity in time to Stenberg, the Carhart ruling seems to unequivocally indicate that Alito’s replacement of O’Connor has caused a conservative shift in the Court’s ideology, at least in relation to the issue of abortion (although I’m sure you Supreme Court buffs out there could cite to other examples).
Although the nation’s highest court is often touted as being above contemporary cultural and political divides and focused instead on a detached interpretation of the law, Carhart demonstrates that the replacement of one of the Court’s members is enough to change the Court’s interpretation of the law.