In 2003, Congress passed the Partial-Birth Abortion Ban without including an exception to the ban for cases in which the health of the mother is at risk. Does the absence of the health exception make the Act unconstitutional?
A group of doctors, led by Dr. Leroy Carhart, sued the federal government, alleging that the Partial-Birth Abortion Ban Act of 2003 is unconstitutional. Because the Act does not provide an exception for procedures that would preserve the mother’s health, Carhart contends that the Act poses an undue burden on women seeking an abortion, particularly where substantial medical evidence demonstrates that certain procedures covered by the ban are necessary and safer than other procedures. Carhart also contends that the Act is unconstitutionally broad and vague, because the Act can be read to ban standard abortion methods. The government argues that the Act does not constitutionally require a health exception, because congressional findings demonstrate that any health risks that the ban poses to women are too infrequent and insubstantial to constitute a risk significant enough to amount to an undue burden that invalidates the Act entirely. The Court’s decision will determine whether governmental interests in protecting potential life and prohibiting procedures that resemble infanticide outweigh a woman’s constitutional right to choose an abortion without the government placing substantial obstacles in her path. Advocates on both sides of the abortion debate view a decision to uphold the Act as a significant first step to future restrictions on the availability of abortions.
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 passed and President George W. Bush later signed into law the Partial Birth Abortion Ban of 2003 (“Ban”). Carhart v. Gonzales, 413 F.3d 791, 793 (8th Cir. 2006). The Ban outlaws the performance of any abortion during which the doctor partially delivers the fetus prior to taking an overt act that causes the death of the fetus. 18 U.S.C. §1531(b) (2003). The Ban targets two particular methods of late-term abortion known as “partial-birth” abortions: intact dilation and evacuation (“D&E”) and dilation and extraction (“D&X”). Carhart, 413 F.3d at 793–94. In the D&E procedure, the doctor collapses the skull of the fetus and then removes the intact fetus. Id. In the D&X procedure, used when the fetus presents feet first, the doctor partially removes the fetus, collapses the skull, and then completes the extraction. Id.
The punishment for violating the Ban is a term of imprisonment of up to two years. 18 U.S.C. §1531(a). The Ban contains an exception for circumstances where the life of the mother is at risk, but no exception for circumstances in which the mother’s health is at stake. 18 U.S.C. §1531(d).
After the Ban was passed by Congress, but prior to being signed into law, Dr. Leroy Carhart and three other doctors filed suit in the federal district court for the District of Nebraska seeking an injunction to prevent enforcement of the law. Petition for Certiorari at 6. The district court found that the Ban was unconstitutional for two reasons: first, the Ban was unconstitutional for failing to include a health exception; second, by prohibiting the most common late-term abortion procedure, the Ban placed an undue burden on the right to an abortion. Carhart, 413 F.3d at 793. The Court of Appeals for the Eighth Circuit upheld the district court’s decision that the Ban was unconstitutional because it does not contain a health exception and therefore did not rule on the district court’s finding that the Ban was unconstitutional for placing an undue burden on the right to an abortion. Id. at 803–04.
In Roe v. Wade, the Supreme Court held that, under the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment, a woman has the fundamental right to terminate her pregnancy. 410 U.S. 113, 147 (1973). Although the government has a compelling state interest in protecting potential life, the Court determined that this governmental interest only permits the government to regulate abortions performed after the fetus reaches viability. Id. at 164. The Court clarified the scope of the government’s authority to regulate abortions in Planned Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S. 833 (1992). In Casey, the Court held that the government cannot place a substantial obstacle in a woman’s path to an abortion. Id. at 877. Included in the definition of a substantial obstacle are abortion regulations that would pose a significant threat to a woman’s health or life. Id. at 880, 978. Thus, Casey says that the government can regulate abortions only to the extent that the regulation does not pose an undue burden to a woman’s constitutional rights. Id. at 877.
In 2003, Congress limited this constitutional right when it enacted the Partial-Birth Abortion Ban Act (“Ban”), which establishes civil and criminal liability for doctors who partially deliver a “living fetus” for the purpose of committing an “overt act” that the doctor knows will kill the fetus. 18 U.S.C. Section 1531(b)(1)(A). Notably, the language of the Ban does not specifically mention the D&X and D&E procedures, but targets deliveries of the fetus up to a certain anatomical point. Id. The government argues that the Ban’s definition targets D&X procedures and excludes D&E procedures, Brief for the Petitioner at 46, while Carhart contends that the definition is broad enough to encompass both D&X and D&E procedures. Brief of Respondents at 11. Prior to the Ban, however, the Supreme Court struck down a similar state partial-birth abortion ban in Stenberg v. Carhart. 530 U.S. 914, 934-35 (2000). In Stenberg, the Court struck down a Nebraska statute because the ban was overbroad and lacked an exception to preserve the mother’s health. Id. at 934, 939. The Court stated that the state ban’s lack of a health exception, particularly where prohibiting intact D&E and D&X procedures, posed unnecessary health risks to the mother that constitute an undue burden to women. Id. In terms of overbreadth, the Court said that, because the Nebraska statute did not clearly define D&X, one could read the statute such that the ban extended to certain standard D&E procedures. Id. at 938–39. Congress enacted the Ban in response to Stenberg, holding numerous hearings and debates, after which it determined that partial-birth abortion is “never medically indicated to preserve the health of the mother.” Pub. L. No. 108–105(13), 117 Stat. 1201, 1203.
In reviewing the present case, the Court must revisit Stenberg and decide to what extent the federal ban is consistent with a woman’s fundamental right to choose an abortion.
The Government’s Argument
The government contends that the Ban is facially constitutional because, under Stenberg, such statutes require health exceptions only when the ban presents substantial health risks to women. Brief for the Petitioner at 15–16. Moreover, to remain consistent with Casey, the Court must read Stenberg such that the undue burden must present itself for a large fraction of the women seeking an abortion. Id. at 19. In this case, before it enacted the Ban, Congress determined that partial-birth abortions are never medically necessary to preserve the mother’s health. Id. at 14. Therefore, banning only intact D&E and D&X procedures while other procedures remain available does not pose health risks significant enough to constitute an undue burden, because the potential for health risks would only burden a small fraction of women seeking abortions. Id. at 15–16. In a footnote, the government concedes that in those fractional cases, the Court should enjoin the Ban. Id. at 16, n.1 (referencing Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006)). Thus, the congressional findings support Congress’s conclusion that the Constitution does not require a health exception in the Ban. Id. at 20. Moreover, including a health exception in the Ban would undermine Congress’s governmental interests. Id.
In furtherance of this argument, the government argues that the Court traditionally has given great deference to congressional findings. Id. at 21–22. For instance, in Turner Broadcasting System, Inc. v. FCC, the Court held that, when determining a statute’s constitutionality, courts should give Congress’s predictive judgments substantial deference and only examine congressional findings to assure that Congress drew reasonable inferences from substantial evidence. 520 U.S. 180, 195 (1997). Additionally, the Constitution grants Congress the authority to weigh the validity of conflicting data as part of its legislative duty. Id. The government relies on Turner to establish that Congress is better suited than the judiciary to gather and analyze factual data concerning the Ban. Brief for the Petitioner at 22. Thus, Congress is constitutionally justified in using its own factual findings regarding the medical necessity of partial-birth abortions rather than being bound by the judicial findings in Stenberg. Id.
The government also argues that the Ban is not overbroad because, unlike the statute in Stenberg, the Ban offers precise anatomical landmarks for delivery that clearly distinguish the banned procedures from other standard D&E procedures. Id. at 47. Specifically, the Ban only applies when, in a head-first presentation, the fetus’s head is completely outside the mother’s body, or in a feet-first presentation, any part of the fetus’s trunk above the navel is outside the mother’s body. Id. In contrast, to perform a standard D&E procedure, a doctor usually delivers smaller parts of the fetus, such as an arm or foot. Id. Moreover, a doctor only violates the Ban when, at the procedure’s outset, the doctor plans to deliver the fetus to one such prohibited anatomical landmark with the intent to perform a discrete overt act, other than completing the delivery, that the doctor knows will kill the fetus. Id. Then, the doctor must perform that act. Id. Thus, the government maintains that the Ban does not reach standard D&E procedures, or even instances where a doctor intends to perform a standard D&E but ultimately, for medical reasons, performs a procedure covered by the Ban. Id. As the Ban clearly defines the prohibited procedures, the government concludes that the ban adequately notifies doctors of the prohibited procedures so that the doctor could comply with the ban. Id. at 49.
Because the Ban’s lack of a health exception does not pose an undue burden and the ban is not unconstitutionally vague or overbroad, the government argues that the Ban is constitutional on its face and, in so far as Stenberg requires the Court to strike down the Ban, Stenberg should be overruled. Id. at 12.
Conversely, Carhart argues that the Ban threatens women’s health, poses an undue burden to women seeking and abortion and is unconstitutionally overbroad and vague. Brief of Respondents at 15–17. According to Carhart, under the Court’s interpretation of Casey in Stenberg, a statute that bans a particular abortion procedure must contain a health exception where substantial medical evidence supports that the banned procedure is sometimes necessary to preserve the mother’s health. Id. at 18–19. Here, there is evidence that demonstrates the health advantages to performing intact D&Es. Id. at 20. For example, intact D&E reduces the risk of uterine perforation, cervical laceration, hemorrhage, hysterectomy, and infection associated with standard D&E, and, for women with certain pre-existing health conditions, intact D&E is the safest procedure. Id. at 21. In Stenberg, the Court accepted this evidence of health risks associated with banning intact D&E. Id. Since Stenberg, the evidence has only been further substantiated, which explains the reason the lower courts ruled the Ban’s lack of a health exception unconstitutional. Id.
Carhart counters the government’s claim that the Court ought to defer to congressional findings by pointing out that giving such deference allows Congress to define the scope of fundamental constitutional rights, which is not authorized in Turner. Id. at 26. Instead, Turner stands for Congress’s power to make predictive judgments about unknown future events that might result from federal regulation, which is not at stake presently, because the relevant findings reflect expert medical opinions about medical procedures currently performed. Id. at 32. Ignoring the limits on congressional powers would permit Congress to encroach on the Supreme Court’s constitutional supremacy in defining and protecting fundamental rights. Id. at 26. Similarly, overturning Stenberg would also undermine the Court’s traditional duties, because it would ignore the importance of stare decisis. Id. at 37.
Finally, Carhart argues that the Ban is unconstitutionally overbroad and vague, because doctors can reach the ban’s specified anatomical landmarks when they perform non-intact D&Es. Id. at 40. For example, when performing a standard non-intact D&E in a feet-first presentation, a doctor may deliver a fetus past the navel and then dismember the fetus rather than puncturing the fetus’s skull, both of which could be found to violate the ban even though only the latter is expressly prohibited. Id. Carhart also argues that the ban’s specific intent requirement serves to further expand and confuse which procedures are banned, because, from the procedure’s outset, doctors often intend to remove the fetus as intact as possible even when they perform non-intact D&Es. Id. at 43. Thus, the ban extends to standard abortion procedures and insufficiently communicates to doctors when they would violate the Ban. Id.
Carhart’s argument, with which the Nebraska District Court and Eighth Circuit agreed, is that any ban on an abortion procedure must have an exception to that ban for cases in which the health of the mother is at risk. Carhart, 413 F.3d at 793. This requirement derives from the Supreme Court’s 2000 decision in Stenberg v. Carhart, which struck down a Nebraska state ban on partial birth abortions. 530 U.S. 914 (2000). The Court in that case struck down the Nebraska ban because it did not provide an exception for cases in which the health of the mother was at risk and because “a State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Id. at 930. In this case, Carhart maintains that similar reasoning should control, as there are cases in which the banned procedures will prevent damage to the mother’s health. Carhart, 413 F.3d at 801–02.
According to “substantial medical authority” offered by Carhart, the D&X and D&E procedures, as opposed to other methods of late-term abortion, reduce risk of injury to the uterus and cervix and reduce blood loss and the length of exposure to anesthesia. Id. at 802. Intact D&E is therefore the preferred option for women with heart problems, bleeding disorders, and several other medical conditions. Brief of Respondents at 20. All told, there are more than twenty five to thirty circumstances in which intact D&E is the safest second trimester abortion procedure. Id. at 20–21. Therefore, in cases in which these concerns are significant, banning these procedures can create health risks for the mother. Id.
The government’s position is that a health exception to the Ban is unnecessary because Congress found that “partial birth abortion is never medically indicated to preserve the health of the mother.” Brief for the Petitioner at 10. Since Congressional findings in this matter are more recent and more complete than the Court’s findings in Stenberg, the Court should not overrule those factual findings. Id. ?
Furthermore, the government maintains that even if the Court decides not to defer to Congressional findings, any safety benefit accorded to women by the intact D&E procedure is outweighed by the states’ interests in prohibiting the procedure. Id. at 10–11. The interests implicated are the states’ interests in protecting life and in prohibiting a procedure that closely resembles infanticide. Id. at 11. Therefore, the Ban does not impose an “undue burden” on a woman’s right to abortion, as the woman’s right is significantly outweighed by the governmental interest. Id.
In the year 2000, approximately 2,200 “partial birth” abortions were performed, representing 0.2 percent of all abortions performed in that year. Julie Rovner, 'Partial Birth Abortions:' Separating Fact from Spin, NPR Legal Affairs, February 21, 2006. These are typically performed between the twentieth- and twenty-fourth week of pregnancy. Id. In addition to cases in which the mother’s health is at risk, these procedures are also frequently performed when the fetus presents a serious abnormality that is only detectable late in the pregnancy. Id.
According to a 2003 poll, approximately 69 percent of Americans support the Ban. Dalia Sussman, Conditional Support Poll: Thirty Years After Roe vs. Wade, American Support Is Conditional, ABCNews, January 22, 2003. Both sides of the abortion debate view the status of the Ban as a highly politically significant first step to a total ban on abortions. Edward Lazarus, The New Anti-"Partial Birth Abortion" Legislation: Is It a Political Watershed, Or Not?, FindLaw Writ, October 30, 2003. In addition to the wide political context, pro-choice advocates view the specific issue of the health exception as particularly important, as they fear that the lack of a health exception will force pregnant women to complete unwanted pregnancies in cases where prohibited procedures would be the only safe option for abortion. See Rovner, Partial Birth Abortions. Pro-life advocates focus on the gruesome nature of the procedure and feel that it is too closely related to post-birth infanticide to be permitted. Office of the Press Secretary, President Bush Signs Partial Birth Abortion Ban Act of 2003, November 5, 2003. Additionally, pro-life advocates view the Ban as supporting the “rights of the unborn.” Id.
Although the Supreme Court expressly upheld a woman’s right to choose an abortion over three decades ago, the right to an abortion remains an issue that is still hotly debated. The Supreme Court’s decision in this case will either strike down the Partial-Birth Abortion Ban Act and remove a restriction on women’s ability to obtain an abortion or uphold the Ban and potentially pave the way for future restrictions on abortion. Either decision is likely to have significant political consequences. Written by:
- liibulletin: cert. grants on the partial-birth abortion cases
- liibulletin preview: Gonzales v. Planned Parenthood Federation of America, Inc.
- Edward Lazarus, The New Anti-"Partial Birth Abortion" Legislation: Is It a Political Watershed, Or Not?, FindLaw Writ, October 30, 2003
- Office of the Press Secretary, President Bush Signs Partial Birth Abortion Ban Act of 2003, November 5, 2003
- Julie Rovner, ‘Partial Birth Abortions:’ Separating Fact from Spin, NPR Legal Affairs, February 21, 2006