Cert. grants on the partial-birth abortion cases: Gonzales v. Carhart, and Gonzales v. Planned Parenthood Federation of America, Inc.
On November 8, 2006, the Court will hear separate oral arguments in the cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood Federation of America, Inc. (05-1382). It is unusual for the Court to consider these oral arguments separately because both cases address an identical Question Presented. See Question Presented, Gonzales v. Carhart, No.05-380 (2006); Question Presented, Gonzales v. Planned Parenthood Federation of America, Inc., No.05-1382 (2006). In Carhart v. Gonzales and Planned Parenthood Federation of America, Inc. v. Gonzales, the Courts of Appeals for the Eighth Circuit and Ninth Circuit, respectively, affirmed district court rulings that the Partial-Birth Abortion Act of 2003 is unconstitutional and, as a result, upheld injunctions on the Ban. 413 F.3d 791; 435 F.3d 1163. The Eighth Circuit issued a narrow ruling based on the absence of a health exception in the Ban. Carhart v. Gonzales, 413 F.3d at 803. The Ninth Circuit, however, issued a considerably more expansive decision; in addition to the absence of a health exception, that court held that the Ban placed an undue burden on a woman’s ability to obtain a pre-viability abortion and that the Ban was unconstitutionally vague. Planned Parenthood Federation of America, Inc. v. Gonzales, 435 F.3d at 1171–72.
The petitions for a writ of certiorari in Gonzales v. Planned Parenthood offer one plausible explanation for the Court’s decision to grant certiorari in both cases. The Eighth Circuit decided Carhart v. Gonzales on July 8, 2005. Carhart v. Gonzales, 413 F.3d at 791. The government filed its petition for certiorari, asking the Supreme Court to review that decision, on September 23, 2005, and the Court granted certiorari on February 21, 2006. Docket, Gonzales v. Carhart, No.05-380 (2006). Thus, when the government filed its petition for certiorari in Gonzales v. Planned Parenthood, on May 1, 2006, the Court had already granted certiorari on the similar, if more narrow, issues raised in Carhart v. Gonzales. See Petition for a Writ of Certiorari at 7–8, Gonzales v. Planned Parenthood Federation of America, Inc., No.05-1382 (2006). The government first asked the Court to grant certiorari, then asked that the Court hold the case, pending the Court’s decision in Gonzales v. Carhart. Id. at 2. The government argued that Gonzales v. Carhart, although based on a narrower issue, would provide a “suitable vehicle” for considering the broader range of issues raised in Planned Parenthood v. Gonzales. Id. at 7. In its reply to the government’s petition, Planned Parenthood argued that the Court should grant certiorari and then consolidate the two cases. Brief of the Planned Parenthood Respondents at 7, Gonzales v. Planned Parenthood Federation of America, Inc., No.05-1382 (2006). Planned Parenthood contended that the Court should include Planned Parenthood v. Gonzales in its consideration so that the Court could avail itself of the more extensive evidentiary record established in that case. Id. at 9–10. In light of the fact that the Court both granted certiorari and scheduled oral arguments for Gonzales v. Planned Parenthood, it appears the Court agreed that the Ninth Circuit’s broader decision provided a better basis for considering the constitutionality of the Ban.
It is much less clear why the Court chose not to consolidate the two cases. The government’s reply to Planned Parenthood’s argument, however, suggests one explanation. The Court considered whether to grant certiorari in Gonzales v. Planned Parenthood in early May of 2006, almost three months after it had granted certiorari in Gonzales v. Carhart. Thus, as the government points out in its reply brief, “[t]he merits briefing in Carhart [was] already well underway.” Reply Brief for the Petitioner at 1, Gonzales v. Planned Parenthood Federation of America, Inc., No.05-1382 (2006). Moreover, by May of 2006, numerous amicus briefs had already been filed in Gonzales v. Carhart. Id. at 4. Although the Court clearly did not find this argument persuasive on the issue of whether or not to grant certiorari, it may have taken these factors to heart when determining whether to consolidate. In other words, while the Court decided that Gonzales v. Planned Parenthood would provide a better platform for determining the constitutionality of the Partial-Birth Abortion Ban Act of 2003, it chose not to consolidate that case with Gonzales v. Carhart out of respect for the efforts that had already gone into preparing argument for the latter.
Author
Prepared by: Miles Norton
Acknowledgments
The author would like to thank Professor Trevor Morrison for his insights into this case.