Executions and Abortions

The Supreme Court today handed down Baze v. Rees, holding that the three-drug "cocktail" used by Kentucky and the vast majority of other lethal injection states to perform executions, does not pose a sufficiently "substantial risk of serious harm." If a method of execution, when properly carried out, is humane, then it does not become categorically inhumane, the plurality opinion (by CJ Roberts joined by Kennedy and Alito) said, merely because there exists "a slightly or marginally safer alternative."

There are numerous interesting aspects to this case (and I'll be talking about some of them with Nina Totenberg on NPR later today), but here I'll just flag one---the connection with a case the Court does not cite: Gonzales v. Carhart, last year's decision upholding the federal Partial Birth Abortion Ban Act. There, recall, the argument was made by the plaintiffs that the Act was unconstitutional for its failure to include a health exception, and that in some circumstances an "intact D & E" (the method of abortion banned by the Act) was the safest. The Court's opinion---as well as Justice Kennedy's dissent in the earlier partial-birth abortion case, Stenberg v. Carhart, which effectively became the law in Gonzales v. Carhart---indicates that an abortion is not medically necessary simply because it is the safest method, so long as the alternative methods are not, objectively, unsafe.

Taken together, Gonzales v. Carhart and Baze v. Rees thus appear to stand for the proposition that the Court---or at least the conservative majority---will give substantial deference to government decisions about what constitutes a risk to health or a risk of terrible pain, even when those decisions are not made on strictly medical grounds.

Posted by Mike Dorf