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So contentious was the 2000 case of Stenberg v. Carhart, where the Court declared the NE statute unconstitutional (it would set up an "undue burden" on a woman seeking a legal abortion), which would have criminalized the administration of the "intact D & E" procedure, that each of the nine justices weighed in with his/her own opinion. It was probably the grisly nature of the procedure (described in the previous essay) that was the reason opponents of abortion passed the NE statute; by trying to outlaw a procedure during the second trimester of pregnancy, they might be in better position to outlaw other procedures in this trimester, then perhaps to move into the rather "sacred" realm of the first trimester with various kinds of restrictions. The abortion wars over the past 30 years, a species of what Pat Buchanan labeled the "culture wars" in 1992, have been fought over incremental changes in abortion practice in the states. The supporters of a ban on partial-birth abortions, then, could use this as leverage in the quest to overturn Roe v. Wade.

Issues Before the Court

So, as the Court decides whether Congress' 2003 law is constitutional, a law which differs almost not at all from NE's earlier law, here are the calculus of factors which are on the Court's plate.

1. The New Makeup of the Court. The Court has added two conservative Catholic justices since Stenberg in 2000. One replaced a dissenter (Rehnquist) and one a concurrer (O'Connor) in Stenberg. Thus, if one was just "running the numbers," one has good grounds to think that Stenberg would be overturned and the procedure proscribed.

2. How Big an Issue would it be if Stenberg actually is overrruled? From one perspective one might argue that this wouldn't be hugely inconvenient to the abortion movement. Approximately 95% of second-trimester pre-viability abortions today are done through the D & E method (and not the D & X or intact D & E method proscribed by the 2003 Act). Thus, the elimination of this one method for procuring of an abortion might not damage Roe/Casey too much. However, in response, one might argue that elimination of the intact D & E would embolden abortion foes to come up with other methods to eliminate, as soon as they could come up with "findings" that the health of the mother wasn't implicated negatively through eliminating this procedure.

3. However, if Stenberg is overruled the abortion "wars" might heat up yet more. Extreme pressure would build in the anti-abortion movement to whittle away at Roe; pro-choice organizations would use this as a fund-raising opportunity to keep the issue front & center in the American consciousness. I think this case has the potential of becoming the measuring stick for whether the "theocon" movement (see the new book Theocons by Damon Linker) has reached its peak in the United States. Central to the "theocon" movement, associated most significantly with Richard John Neuhaus, has been an attack on the so-called "culture of death" which has been part of the American "decline" since the 1960s. In 1994 the Catholic and Evangelical moral conservatives decided to bury some of their traditional distrust for each other and embrace a common statement of theological and social purpose. This statement laid out a conservative social agenda. But this agenda, though not abhorrent to much of America, may have been trumped by its own rhetoric. For example, the most vocal of the "social conservatives" in the US Senate, Rick Santorum (R-PA) was decisively defeated by Robert Casey (the son of the Governor of PA mentioned in the 1992 US S Ct Casey case) yesterday. Though this doesn't mean that a decisive "sea change" has occurred, I think that it may suggest that the social conservatives, as their friends call them, have reached the acme of their influence. The Court's decision in Carhart, probably sometime in Spring 2007, may be an indication of the waning power of this coalition.

4. An attack on the Court. One of the items in the social conservative/theocon agenda has been to argue that the Supreme Court is a liberal body which needs to be reined in. The reining in of the Court, however, is very difficult since the Justices enjoy life tenure. Though seven of the nine Justices were appointed by Republican Presidents, only a few of them were appointed since the "social conservatives" have achieved cultural visibility. Thus, the Court is, from their perspective, an unpredictable body. From the perspective of members of the Court, however, the passage of the 2003 Act, an Act which reflects the philosophy of the theocons, is a direct attack on the independence of the judiciary. Why? Because the statute is substantially the same as the one disallowed by the Court in 2000. If the Court were to overturn its precedent from 2000 it would be committing a double sin. First, it would disregard the concept of stare decisis, so important to its functioning and second, it would defer to Congress against itself on an issue recently decided by the Court. It would make the Court look like a rather supine body and it would give Chief Justice Roberts a sort of identity problem/crisis. We already know that he has deferred to the Administration a bit too much (the Oregon Assisted Suicide case is an example from 2006); now if he defers to Congress when Congress is directly "in your face," it might show him as a Chief who isn't quite sure what the role of the Court is in the modern world. It would, in a word, make him look like rather a wimp--a deferential Catholic school boy who has learned his lesson only too well that you just don't question authority.

Conclusion

Thus, this case looms large both legally and culturally. It gives the Court a wonderful chance to say that it is the COURT, even though many will scream if they uphold their 2000 precedent. But it also may be a bellwether on the issue of whether the theocon influence has already begun to recede. I think that the ebbs and flows of power at the present time is a most interesting and complex issue, and this is the best I can do...

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