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The New Anti-"Partial Birth Abortion" Legislation:
Is It a Political Watershed, Or Not?


Thursday, Oct. 30, 2003

Congress has now passed, and President Bush is certain to sign, a new federal law criminalizing the performance of so-called partial birth abortions. And political commentators are already lining up the winners and losers in this latest skirmish in the abortion wars.

Naturally, those who oppose abortion rights are hailing the legislation as a landmark achievement in the protection of the unborn. Meanwhile, pro-choice advocates are sending up another set of danger flares -- suggesting that the constitutional right to abortion has suffered another devastating blow.

In truth, both views are likely overblown. I have my doubts that that enactment of the federal partial birth abortion ban marks any kind of political watershed at all.

A substantial majority of Americans has come to terms with the uneasy equilibrium that abortion should be regulated but ultimately legal. Nothing about this new federal law will change either that truth, or the dissenting passions on both sides of the centrist block.

This is not to say, however, that the new anti-"partial birth" abortion law does not create at least one profound "loser." That loser is Congress.

With this law, Congress has once again elevated the politics of symbolism over the politics of substance. It has done so by passing a clearly unconstitutional law that is bound to be enjoined by the federal courts as soon as -- or even before -- it is applied in the very first actual instance.

Sadly, this largely empty act is the latest in a series of Congressional actions that are all symbolism, and no substance. What Congress may not realize, is that such actions have a cost: They will further entrench the open disdain that the Supreme Court has already showed in recent years for its supposedly co-equal legislative branch of government.

A Recent Supreme Court Decision Makes Plain that the New Law Is Unconstitutional

The constitutionality of outlawing partial birth abortion is not an open question. The answer is simple: "Partial birth" abortion may be able to be outlawed, but not through the kind of legislation Congress just passed.

In 2000, in Stenberg v. Carhart, the Supreme Court ruled 5-4 that Nebraska's partial birth ban placed an "undue" (and therefore unconstitutional) burden on a woman's constitutional right to terminate a pregnancy. As has long been true in abortion cases, Justice Sandra Day O'Connor cast the decisive vote.

In Carhart, Justice O'Connor both joined the majority opinion and wrote separately so as to highlight the unconstitutional features of Nebraska's law. Specifically, she identified two flaws in the Nebraska law. And she made clear that each of these flaws, alone, was independently sufficient to render the law unconstitutional.

Amazingly, the new Congressional anti-"partial birth" abortion law contains both of these flaws -- despite Justice O'Connor effort to carefully outline them.

The Two Glaring Flaws in the New Congressional Anti-"Partial Birth" Abortion Law

First, as Justice O'Connor pointed out, Nebraska's prohibition on partial birth abortions did not provide a "health of the mother" exception -- that is, an exception allowing the banned procedure if it is the best method for ensuring the health of the mother.

In Justice O'Connor's view, and that of a majority of the Court, such an exception constitutionally must exist even for a relatively late-term abortion. But the federal law includes no such exception.

Second, as Justice O'Connor also pointed out, Nebraska's law did not provide a sufficiently precise definition of what procedure, exactly, it was banning. The state legislature claimed to be targeting an uncommon and especially gruesome procedure known as "D & X" -- dilation and extraction. But in fact, according to Justice O'Connor (who was picking up on the complaints of physicians) that statute appeared to affect not only D&X's, but also a broad range of other abortion procedures.

Justice O'Connor and the majority made clear that this vagueness placed abortion providers in an impossible position. As a result, it also places an unconstitutional burden on a woman's right to choose.

Like the Nebraska law the Court struck down in Stenberg, the federal law also appears to sweep broadly in the procedures it bans. It displays the very same vagueness problem. And thus, it is unconstitutional for the very same reason.

The Court must be wondering: Will Congress ever learn?

Congress Loses the Court's Respect When It Passes Plainly Unconstitutional Laws

Perhaps not. After all, this is not the first time that Congress has deliberately flouted a recent Supreme Court decision.

In 1989, in Texas v. Johnson, the Supreme Court struck down Texas's law criminalizing the act of burning the American flag, holding that the law violated the First Amendment's protection of free speech. But soon afterward, Congress passed a flag desecration statute almost identical to the Texas law the Court had just declared unconstitutional. Not surprisingly, in 1990, the Supreme Court ruled the federal statute unconstitutional as well.

Naturally, members of Congress cannot be stopped from engaging in political grandstanding at the judiciary's expense. There were political points to be scored by attacking flag burners and more recently, by purporting to ban "partial birth" abortion.

Indeed, this kind of legislation provides generates very advantageous publicity -- and it does so twice. When the bill is passed, it makes headlines. Then, when the courts strike it down, that makes headlines -- and the Congressional sponsors seem, to some, to have fought bravely for their views

But while such acts may advance certain political agendas, they damage the institution of the legislature in the eyes of the judiciary, and especially in the eyes of the Supreme Court.

The Evidence Shows that the Current Courts Has Little Regard for Congress

The evidence is everywhere that a majority of current Supreme Court justices hold the institutional of Congress in low regard. For one thing, the Court under Chief Justice Rehnquist has declared federal statutes unconstitutional at an unprecedented rate.

And more than this, in the process, the Court majority has repeatedly refused to defer to legislative fact-finding. Instead, it has ruled that Congress has passed important legislation without an adequate factual foundation -- a crushing (if sometimes deserved) insult to a coordinate branch of government.

Not so many years ago, when the Court tried to discern the meaning of a piece of legislative history, it considered the most important source material to be the legislative history -- such as committee reports and floor debates -- that led to the passage of the law. Now, the Court consults that legislative history only as a last resort. And it does so, in no small part, because many of the Justices think that the legislative record is not a true history reflecting a carefully considered debate between competing views. Rather, they believe it is something manufactured by clever staff members seeking to influence subsequent judicial determinations.

Even the Court's decision in Bush v. Gore, though not related to legislation, can reasonably be read as reflecting the Court's low regard for Congress. In stopping the election process and declaring George Bush the winner, the Court consciously short-circuited a constitutional process for resolving election disputes -- the electoral college -- that leaves to Congress the final resolution of disputed presidential elections. By substituting its own judgment for that of the legislative branch, the Court engaged in both an act of self-aggrandizement and an act of disrespect towards the elected decision-makers sitting across the street in the Capitol.

I do not claim, of course, that the court's recent decisions striking down federal statutes, its shift away from legislative history, or its decision in Bush v Gore are caused exclusively by the Justices' sense that Congress' approach to law-making is increasingly irresponsible. By the same token, however, that sense is surely a contributing factor in all of these decisions.

At the end of the day, the Court will take Congress just as seriously as Congress takes itself. And serving up to the Court patently unconstitutional statutes, especially ones that force the Court to make internally and externally divisive rulings, doesn't qualify as taking seriously the responsibility of making the nation's laws.

For this reason, as well as others that have been voiced elsewhere, the recent anti-"partial birth" abortion legislation was a grave mistake.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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