Given congressional findings that the techniques comprising partial-birth abortion would never be necessary to preserve the mother’s health, does the lack of such a health exception or any other facial flaw in the Partial-Birth Abortion Ban Act of 2003 render the ban unconstitutional?
The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has held that “liberty” encompasses a woman’s right to choose abortion. Although states may regulate abortion after the fetus has reached viability, they may only do so if their regulations provide an exception for procedures that are necessary to preserve the life or health of the mother. In 2000, the Court invalidated as unconstitutional a Nebraska ban on partial-birth abortions that lacked a health exception, based on district court evidence of the medical necessity of such a procedure. Congress subsequently determined that such a health exception was unnecessary, because the procedures used for partial-birth abortion, in Congress’s view, are never necessary to preserve the health or life of the mother. Congress then enacted the Partial-Birth Abortion Ban Act of 2003. In 2004, the Planned Parenthood Federation of America sued to have the Act declared unconstitutional and enjoined. The Supreme Court will now take up the constitutionality of the Act.
Questions as Framed for the Court by the Parties
Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.
In 2003, Congress enacted the Partial-Birth Abortion Ban Act (“Ban”), which defined “partial-birth abortion” as “deliberately and intentionally vaginally deliver[ing] a living fetus . . . for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and perform[ing] the overt act, other than completion of delivery, that kills the partially delivered living fetus.” 18 U.S.C. § 1531(b)(1)(A) (2003).The procedure used for such an abortion is called dilation and evacuation (“D&E”). Planned Parenthood Federation of America, Inc. v. Gonzales, 435 F.3d 1163, 1166 (9th Cir. 2006). Two types of D&E procedures exist—intact and non-intact. Id. at 1167. Both versions of the procedure begin by dilating the cervix; but in an intact D&E, doctors use forceps to remove the fetus intact in one pass, collapsing the skull to allow it through the cervix. Id. In a non-intact D&E, the doctor attempts to bring the fetus through the cervix without collapsing the head, which usually causes the fetus to disarticulate, or break apart. Id. Disarticulation of the fetus means that the doctor will need to make multiple passes to remove the multiple parts, and may be considered less safe than the intact D&E, which requires “fewer instrument passes, a shorter operating time and consequently less bleeding and discomfort for the patient, less likelihood of retained fetal or placental parts that can cause infection or hemorrhage, and little or no risk of laceration from bony fetal parts.” Id. at 1167–68.
The congressional findings in preparation for the Ban include the statement that in the “very informed judgment of the Congress . . . a partial-birth abortion is never necessary to preserve the health of a woman. Pub. L. No. 108–105, § 2(13), 117 Stat. 1201, 1203. After hearing testimony during the 104th, 105th, 107th and 108th Congresses, Congress found that the procedure “poses serious risks to the health” of the patient; that no credible medical evidence existed that the procedure was safe or was safer than other procedures; and that a “prominent medical association” concluded the procedure is not accepted medical practice, but is “ethically wrong.” Pub. L. No. 108–105, § 2(14)(C), 117 Stat. 1201, 1204. The Ban was therefore enacted in late 2003 without an exception to preserve the mother’s health. Planned Parenthood v. Gonzalez, 435 F.3d at 1169.
In early 2004, Planned Parenthood Federation of America sued in the District Court for the Northern District of California, challenging the Ban as unconstitutional. Planned Parenthood Federation of America v. Ashcroft, 320 F.Supp.2d 957 (N.D. Cal. 2004). The trial lasted about three weeks, and the district court heard the testimony of thirteen expert witnesses. Planned Parenthood.v. Gonzales 435 F.3d at 1169. The district judge held that the Ban is unconstitutional because it places an undue burden on a woman’s right to choose, is unconstitutionally vague, and lacks a required health exception; as a consequence the judge permanently enjoined enforcement of the Ban. Planned Parenthood v. Ashcroft, 320 F.Supp at 1035. The government appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the unconstitutionality of the Ban on all three bases and upheld the injunction as the only appropriate remedy. Planned Parenthood v. Gonzales, 435 F.3d at 1191. The United States requested certiorari, which was granted on the issue of the necessity of a health exception to the Ban despite congressional findings to the contrary.
The Partial-Birth Abortion Ban Act of 2003 does not include an exception for situations that endanger the health of the woman. Pursuant to Casey and Stenberg, an abortion regulation is unconstitutional when it fails to include such a provision if the regulated procedure may occasionally be necessary “to preserve a woman’s life or health.” In the wake of Stenberg, however, Congress concluded that the partial-birth abortion procedure would never be so required. Congress’s finding notwithstanding, a number of circuit courts have found the Ban unconstitutional on its face because of the lack of a health exception or otherwise. Thus, the Court’s decision will not only impact the future of abortion regulation, but also resolve the conflict between Congress and the courts.Written by: