New Justices, New Rules: The Supreme Court Upholds the Federal Partial-Birth Abortion Ban Act of 2003

The Supreme Court took a bite out of reproductive rights in Gonzales v. Carhart, upholding a federal criminal ban on so-called "partial-birth" abortions against a facial constitutional challenge. (A facial challenge takes issue with the constitutionality of the lion's share of a statute's applications; by contrast, an "as applied" challenge takes issue with how the statute has been applied in a particular case.)

This marks the first time the Court has upheld a ban on a particular method of abortion. It also marks the first time it has upheld a law that did not make an exception to preserve a woman's health. Both of these "firsts" signal that the future of a woman's right to choose in the hands of the newly constituted Supreme Court is not bright.

Indeed, in troubling ways, Carhart retreats from the Court's prior understanding as to how the abortion issue implicates women's constitutional liberty and equality.

The Federal Law at Issue in Gonzales v. Carhart

The Federal Partial-Birth Abortion Ban Act of 2003 (PBABA) imposes civil and criminal penalties on a physician who knowingly performs what opponents call a "partial-birth" abortion, but what the medical community calls an "intact dilation and evacuation" (intact D&E) or a "dilation and extraction" (D&X). The gist of this procedure - as compared to others -- is that the life of the fetus is terminated after it has partially left the uterus, rather than before.

This procedure is primarily used for second-trimester abortions, when the fetus cannot be removed through the most common first-trimester method, which uses suction. (Still-permissible methods for later-term abortions involve killing or dismembering the fetus in utero before removing it.) Only a few thousand of the 1.3 million abortions that are performed annually involve the banned method.

The federal ban had previously been blocked from taking effect by lower court rulings issued after lengthy trials. (Joanna Grossman explained these rulings in a previous column). The ban is unusual in several respects: It comes from the federal government (abortion is typically regulated by each state); it bans the procedure regardless of how early in the pregnancy it is used; and, most importantly, it contains an exception to preserve the mother's life, but not her health.

The Crucial Change in the Composition of the Supreme Court

That last point is especially significant for, in 2000, the Supreme Court had struck down a very similar ban, enacted by Nebraska. In that 5-4 ruling, Stenberg v. Carhart, the Court found two fatal flaws in the Nebraska "partial birth abortion" ban: the failure to make an exception to preserve the mother's health, and the vagueness of law's description of the outlawed procedure.

Yet despite that ruling, only three years later, in 2003, Congress passed the PBABA. (Congress had twice before passed the same law, but President Clinton had vetoed it both times.) One thus might have expected that the law would be struck down in the Gonzales v. Carhart case, just as Nebraska's had been in the Stenberg case.

However, the composition of the Court changed in the interim, in two respects. First, the late Chief Justice Rehnquist was replaced by Chief Justice John Roberts, but that makes little difference in this area, as their anti-abortion rights stances are very similar. Second, retired Justice Sandra Day O'Connor was replaced by Justice Samuel Alito. And that made a great deal of difference. Justice O'Connor, an author of the joint opinion in Planned Parenthood v. Casey, which reaffirmed Roe, was the swing vote in Stenberg, and Justice Alito swung the other way in Gonzalez.

The Ruling in Gonzales v. Carhart: Curtailing the Right to Choose Abortion While Leaving Prior Precedents in Place

Justice Kennedy, who dissented in Sternberg and wrote the majority opinion in Gonzales v. Carhart, took pains to describe the opinion's supposed faithfulness to prior abortion precedents.

The core principle that a woman's right to seek an abortion is protected as part of a right to privacy under the Due Process Clause of the Fourteenth Amendment was established in 1973, in Roe v. Wade - which, of course, has long been a controversial precedent.

In 1992, Justices Kennedy, O'Connor and Souter brokered a compromise in Planned Parenthood v. Casey. That case retained the core holding of Roe, but reframed the right as the right to seek an abortion pre-viability without the imposition of any undue burden by the government.

The "undue burden" test is now the touchstone for analyzing the constitutionality of abortion restrictions. But since the test was already in place when the Court struck down the Nebraska law in Stenberg in 2000, how can we explain the opposite result in Gonzales v. Carhart in 2007?

According to Justice Kennedy, the differing result can be attributed to the findings Congress made before enacting its ban, and to the more careful attention Congress paid when drafting the ban. In 2000, in Stenberg, the Court had ruled that a law prohibiting abortion must contain a health exception whenever there is "substantial medical authority" showing the medical necessity of the procedure in some cases. Because the Nebraska law contained no such exception, it was invalid.

The PBABA, as mentioned above, also does not contain a health exception and, yet, survived constitutional scrutiny. Why? According to Justice Kennedy, the two laws differed in "material ways":

First, the lack of a health exception in the PBABA was not fatal because Congress made a finding that the banned procedure is never medically necessary. Justice Kennedy did not completely credit Congress' finding on this point. Rather, he acknowledged the "medical uncertainty" about whether this procedure would ever be medically necessary for a woman undergoing an abortion. Yet he refused to invalidate the law because it lacked a health exception. Instead, he explained, an individual pregnant woman or her doctor could assert the need for a health exception in a particular case. (As noted above, this would be an "as applied" challenge, in contrast to the "facial" challenge at issue in Gonzales v. Carhart itself.) Justice Ginsburg, in dissent, rightly criticizes this requirement of piecemeal litigation, which "jeopardizes women's health and places doctors in an untenable position."

Second, the PBABA, according to Justice Kennedy, cured the vagueness problem in the Nebraska law. Instead of invalidating any procedure that killed a fetus after a "substantial portion" of it had left the mother's womb, the PBABA gives specific "anatomical landmarks" for defining the banned procedure. Thus, according to the majority opinion, the law does not put doctors at risk of inadvertently violating it, nor does it unduly restrict the ability of doctors to perform late-term abortions. Nor, the majority noted, does it ban the more common late-term method known as D&E (as opposed to intact D&E), an extension that would, according to Justice Kennedy, certainly have rendered the law unconstitutional under Casey.

From Casey to Carhart: Abortion as an Act "Fraught With Consequences"

Some seeds for Justice Kennedy's majority opinion in Carhart were sown in the Casey joint opinion. In particular, Carhart's reference to the abortion decision as "fraught with emotional consequences" brings to mind Casey's reference to abortion as a "unique act . . . fraught with consequences for others."

How did this emphasis on consequences in the joint opinion in Casey lead to the opinion in Carhart? According to the joint opinion in Casey, abortion creates consequences "for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted." Justice Kennedy first invoked this aspect of Casey in his dissent in Stenberg, stating that Nebraska's law furthered the state's interest in protecting the integrity of the medical profession by not blurring the line between abortion and infanticide.

In Carhart, however, Justice Kennedy draws on this notion of consequences to argue that the state can act to promote respect for life, but also to further women's informed choice. But Justice Kennedy's treatment of the informed consent issue in Carhart is a dramatic departure from the way the issue is treated in Casey:

Casey affirmed the state's authority to attempt to persuade a woman to continue her pregnancy, through an informed consent procedure that allowed the state to express its "profound respect for the life of the unborn" and inform her about alternatives to abortion.

In Carhart, however, Justice Kennedy upholds a law that precludes physicians from performing - and women from choosing - a particular method of abortion. Why? He contends that the state has a legitimate concern over the lack of information women will likely receive from their physicians about D & E and intact D & E since physicians may prefer not to tell women the "precise details" of a procedure that is already "so fraught with emotional consequences."

Justice Kennedy argues that this lack of information is particularly harmful for some women: "It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Is the PBABA's Ultimate Aim Banning All Second Trimester Abortions?

Justice Ginsburg's dissent points out the illogic of using this argument about informed consent to justify a complete ban on an abortion procedure - as opposed to, say, a legal requirement mandating that the pregnant woman be told the information Justice Kennedy fears she will not know.

Thus, it is puzzling when Justice Kennedy further states that: "it is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions." Which women, though? The PBABA allows no health exception, so that a physician may only perform such an abortion when "necessary to save the life of a mother." Does this mean that a "necessary" effect of the Act will be that women who need such abortion in order to save their lives would be encouraged not to seek them?

Or does it mean that women who seek an abortion beyond the twelfth week, and who learn that intact D & E is barred because it is allegedly more "inhumane" or "gruesome" than D & E, will learn enough about D & E that they reject it as well? The reference to "late-term" abortion itself is ambiguous: Does "late term" now refer to all abortions that take place after the twelfth week of pregnancy, and for which a procedure such as D & E or intact D & E must be used?

This reading is supported by Justice Kennedy's observation that PBABA may lead the medical profession to "find different and less shocking methods to abort the fetus in the second trimester," and that the State's interest in respect for life is advanced by a "dialogue" better informing "the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion."

Again, since PBABA restricts women from "electing" one method of abortion unless it is necessary to save their lives, what can the aim of this "dialogue" be?

It must be the expectation that widespread dissemination of the graphic descriptions of fetal dismemberment that takes place in D & E - the most common and still lawful (even after Gonzales v. Carhart) method used for second-trimester abortion - will build a societal consensus against any second trimester abortion because of the "consequences."

Indeed, if we are correct in this inference, then it seems likely that the next spate of abortion restrictions, sponsored by opponents of Roe and Casey, will attack D & E as a "gruesome" and "inhumane" procedure that offends (to use Justice Kennedy's term) the "dignity" of life. Thanks to the new Supreme Court, those mounting that attack will be able to quote extensively from Carhart and the legislative record concerning the PBABA.

In Part II of this two-part series of columns, we will address Gonzales v. Carhart's portrait of abortion as posing psychological peril for women and how Gonzales v. Carhart departs from the Court's prior affirmation of pregnant women's liberty and equality.