In the oral argument, there was a dramatic gap between the liberal and conservative justices about how broadly to create a health exception. Roberts suggested that a marginal increase in safety wasn't enough to override Congress's interest in preventing D&X abortions as long as the D&E procedure was nearly as safe in most cases. Justice Stephen Breyer, by contrast, wondered aloud whether the Court might allow D&X abortions "only where appropriate medical opinion finds it necessary for the safety or health of the mother." And, in 2000, Breyer wrote for the Court emphasizing that D&X abortions had to be allowed as long as a "significant body of medical opinion" believed they might be safer for some patients. The Court had previously said the abortion itself had to be necessary for the woman's physical or psychological health; Breyer expanded this to say that, if a woman chose an abortion, she was entitled to the safest one in all circumstances.But the main point of the article is that John Roberts will find -- Rosen prompts him to go for -- a compromise, a narrow basis for decision that could bring the Court together over this devisive issue. The idea is that the new Chief ought to see his role in terms of avoiding divisions and that his success will be defined by his ability to achieve unanimous decisions:
If Breyer applies the same lax standard in this case, he risks calling into question his hard-earned reputation as the justice most deferential to Congress--since a minority of doctors believe that the D&X procedure is always safer than D&E. Between 1994 and 2000, Breyer and Ruth Bader Ginsburg voted to strike down fewer federal laws than any other justice; and, in his recent book, Active Liberty, Breyer argues that judges should show restraint and modesty in the face of national disagreement, deferring to the decisions of elected representatives--especially those in Congress--in order to promote democratic deliberation. There was something unseemly about Breyer's announcement that he had asked his law clerks to tally up the numbers of medical experts who testified for and against the partial-birth ban at every stage in the case. He seemed to be allowing his progressive weakness for the rule of experts to trump his devotion to judicial deference to Congress. By allowing the federal ban to be enjoined only for specific categories of medical conditions in which substantial numbers of doctors believe that D&X abortions are safer than D&E abortions, Breyer could preserve his record as a principled defender of judicial restraint.
Roberts's hero, Chief Justice John Marshall, convinced a group of unruly colleagues to converge around narrow, unanimous opinions that appeared to give a victory to one side while also acknowledging the claims of its bitter opponents. If Roberts follows Marshall's example and finds a deft compromise in the abortion wars, he will deserve the thanks of a grateful nation. And, if he fails, his vision of a Court that governs best when it governs most narrowly will be off to a bumpy start.But this is all contestable. Marshall kept things narrow? Marshall gave the losing side respect? Which cases is Rosen looking at when he makes that assertion? And is narrow compromising Roberts's only path to greatness? Is it a path to greatness at all?