In defense of Dr. Dobson

In the wake of the Supreme Court's April 17 decision in Gonzales v. Carhart, which upheld the federal law against partial-birth abortions, a furor broke out after my boss, Dr. James Dobson, praised the ruling on the grounds that it will save the lives of preborn children.

He was attacked ferociously by a small group of pro-lifers who say the ruling did no such thing, because the justices explained how other methods of late-term abortion could be used to replace the one they had just thrown out.

Now if I tell you that a road to town is partially washed away, will you call me a liar if there are other roads that still take you to town? You won't unless you want to purposely misrepresent what I told you. And that's the nature of the attack on Dr. Dobson. He rightly pointed out that for the first time since 1973, one road to abortion has sustained legal damage, and truly that is a tremendous encouragement, for until Carhart, no Supreme Court ruling has upheld an attempt to close such a road to abortion. We all understand that other roads exist, and we know that new ones can be built.

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Eager to find strife among social conservatives, the media have given this tempest a larger teapot, because it fits another story line the media has created: There is disagreement and confusion over the historic social issues that have united the movement.

Amidst the fuss, something very significant has been lost. There are two other reasons why the Carhart decision – apart from the partial-birth abortion method itself – will likely save the lives of preborn children whose mothers, because of the decision, will not abort their babies. How many? Hard to say.

Back in 1989, Pennsylvania's state Legislature passed five laws to limit abortion. The laws required parental permission, informed consent, spousal notification, a "medical emergency" exception to these laws, and record-keeping requirements for abortion clinics. Before they could even take effect, Planned Parenthood obtained an order from a federal court that stopped them cold while the courts examined their constitutionality.

Three years later, the Supreme Court handed down Planned Parenthood v. Casey, which said four of those five laws were constitutional. How many children were aborted in those three years, while the legal machinery creaked along? We'll never know, but we can safely surmise that some babies lost their lives to abortion while the new laws sat on the shelf, unenforced.

What happened in Pennsylvania has happened a lot. Ever since the Roe v. Wade decision in 1973, legislators in nearly all states passed new laws to curb the number of abortions, only to have many of them blocked by federal court injunctions. Ultimately, most of them took effect, but just as in Pennsylvania, an untold number of children across the country died who might have been saved had the laws been enforced.

How is this possible? After all, the U.S. Constitution restricts access to the federal courts to actual "cases or controversies," to keep theoretical objections from clogging the court dockets. To get your day in federal court, you need real plaintiffs who have suffered real harms. The two exceptions to that general rule have been in free speech cases (because of the "chilling effect" of government regulation of speech) and also, unfortunately, in abortion cases.

How did that happen? Former Justice Sandra Day O'Connor wrote it into the Casey decision. It was her "undue burden" test for abortion regulations, which effectively elevated abortion to the same favored status as speech. That, wrote Justice Antonin Scalia, "must be chalked up to the Court's inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue."

And so, only in free speech and abortion cases can laws be challenged on their face as unconstitutional, without real facts and circumstances attached to the objections. These are called "facial" challenges. In all other matters, cases can only be brought as they are applied to real people in real circumstances. These are called "as-applied" challenges.

But when the Supreme Court handed down Carhart in April, the court majority signaled that the special deal for abortion cases was coming to an end. The language in the opinion made it clear that from now on it will be nearly impossible for abortionists to run to federal court to block an abortion law before the ink is dry, in a facial challenge.

With this latest abortion decision, it looks like the Supreme Court is establishing a new paradigm for abortion cases. Although the lower federal courts in California and Nebraska had struck down the 2003 federal PBA ban via the typical "facial" challenge, the Supreme Court opinion held that "these facial attacks should not have been entertained in the first instance." Only "as-applied" challenges should be entertained in the future in such cases, wrote Justice Kennedy in the majority opinion. That means abortion laws can only be challenged as to specific, actual situations that may come up – and if exceptions need to be judicially carved out of the law to solve those rare problems, the bulk of the law remains intact.

Undoubtedly, the Carhart decision will breathe new life into the passage of abortion-limiting laws around the country. And when those new laws are passed, they'll stay on the books and they'll be enforced, and lives will be saved because of Carhart. And if at some point one or more of those laws is found to be unconstitutional, it will only be the result of a challenge "as applied" to a real situation, not a theoretical "facial" challenge.

Carhart was significant for yet another reason. The court acknowledged for the first time since 1973 that an abortion procedure could be prohibited because of "ethical and moral concerns," including the observation that "some women come to regret their choice to abort the infant life they once created and sustained."

By accepting and defending Congress' right to base an abortion law on moral concerns, the Court punctured the hot air balloon that has carried the abortionists' lie since 1973 – that a preborn baby is a blob of tissue that the mother needn't think about in human terms. One need only read Justice Ruth Bader Ginsburg's outraged dissent on this issue or the dozens of editorials written by abortion advocates since the decision to realize just how deeply this part of the Court's opinion cut. Pro-lifers have been waiting a long time to hear such moral concerns validated in a Supreme Court opinion.

Liberals have been hoping since the 2003 Lawrence v. Texas decision that morals-based legislation was dead, and that abortion, assisted suicide, pornography and the like would no longer be a valid concern of legislatures or Congress. The Carhart decision should be an encouragement to all Americans that we have not plunged into that abyss after all.

In the end, Carhart is just one new road away from abortion, and there will have to be others. But we'll gladly travel this road until that day when we can finally see an end to unrestricted abortion in this country.

So for now, it is right to celebrate the court's decision in Carhart.

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Tom Minnery is senior vice president of Government and Public Policy for Focus on the Family. His staff produces Citizen magazine, a monthly issues magazine with a circulation of 60,000; Family News in Focus, a daily information and analysis radio program broadcast on approximately 1,600 radio outlets; and CitizenLink, a daily e-mail alert on hot issues and legislation distributed to 120,000 subscribers.