Wednesday, April 18, 2007

Supreme Court Prognostication Tally - One for Two

Today the Supreme Court upheld the Federal Partial-Birth Abortion Act, so my humble prediction from September 2006 from the beginning of the current Term (below) was incorrect, making my tally now one-for-two (oh well) (I was correct on February's decision on the Philip Morris USA case).

Here's what I said in September:

"Humble prediction (Sept 2006): The Court will affirm the lower courts by a 5-4 vote and properly strike down the Partial-Birth Abortion Ban Act. This is a very close call, though, and the case could easily swing the other way, depending on where Chief Justice Roberts comes down. The Court struck down a substantially similar state law by a 5-4 margin six years ago in Stenberg, so it would seem easy to predict a similar fate for this Act were it not for the uncertainty created with the addition of the two new Justices just last year. Assuming the seven remaining Justices hold their votes from Stenberg, Justice Alito very likely will replace the late Chief Justice Rehnquist’s dissenting vote; and there is some reason to believe that Chief Justice Roberts, based on statements he made during his confirmation hearings, will replace Justice O’Connor’s majority vote. If he does not, however, and instead joins the Stenberg dissenters, these cases would represent a substantial step in the long-term conservative strategy, as laid out by Justice Alito in a mid-1980s memorandum, to attack Roe v. Wade with a “death by a thousand cuts” strategy rather than seeking an outright reversal."

As it turns out, Chief Justice Roberts did not replace Justice O'Connor's vote; rather, he joined the Stenberg dissenters.

I'm not as worried as some pro-choice folks about the larger impact of this decision on the right of abortion generally, though the failure to allow a health exception is deeply troubling. The statute bans a particular method of abortion (a particularly gruesome one, at that), not the right of abortion itself. As I noted in my prediction, this might seem like one of a "thousand cuts," and I'm sure that's the hope of pro-lifers, but I don't think a majority of the Court, even now with Roberts and Alito, would vote in favor of any sort of total bans on abortion.