The vote was 5-4, Kennedy writing the majority opinion, joined by Roberts, Scalia, Thomas, and Alito. Thomas concurred, joined by Scalia. Ginsburg wrote the dissenting opinion, joined by Stevens, Souter, and Breyer. The opinions are here.
The Thomas concurrence, joined by Scalia, reaffirms their view tha Roe v. Wade should be overruled; one striking fact about Carhart is that neither Roberts nor Alito joined Thomas and Scalia, and neither expressed any other form of disagreement with the Casey framework. Thus, the always unreliable tea leaves suggest that there are currently only two votes to overrule Roe. Of course, critics of the Casey and now Carhart may not take much solace in this fact, believing that Roe has been (almost) nullified by the Casey framework. That belief is reinforced by today's decision, which weakens the "undue burden" test, especially when compared to Court's approach in Stenberg.
Here is the key passage discussing Stenberg:
On the other hand, relying on the Court.s opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception .if .substantial medical authority supports the proposition that banning a particular procedure could endanger women.s health.. . Brief for Respondents in No. 05.380, p. 19 (quoting 530 U. S., at 938); see also Brief for Respondent Planned Parenthood et al. in No. 05.1382, at 12 (same). As illustrated by respondents. arguments and the decisions of the Courts of Appeals, Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. Carhart, 413 F. 3d, at 796; Planned Parenthood, 435 F. 3d, at 1173; see also Nat. Abortion Federation, 437 F. 3d, at 296 (Walker, C. J., concurring) (explaining the standard under Stenberg .is a virtually insurmountable evidentiary hurdle.).
A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a womans health, given the availability of other abortion procedures that are considered to be safe alternatives.
It is, nonetheless, remarkable that only two of the seven Republican appointees are willing (at this point) to overrule Roe.
Lyle Dennison's post on Scotblog is here. Marty Lederman's analysis of the relationship to Justice O'Connor's retirement is here.
