The Supreme Court Grants Review on the Constitutionality of Congress' Partial Birth Abortion Ban Act

Last week, the Supreme Court granted review of a case, Gonzales v. Carhart, in which the lower court had struck down the federal Partial Birth Abortion Ban Act (PBABA). Granting review in this case may be the Court's biggest action this year in the area of abortion rights.

In particular, the Court's taking up the dispute over the PBABA may provide important information on the two new Justices (especially Chief Justice Roberts) and on the one veteran Justice (Justice Kennedy) who - with Justice O'Connor's departure -- now finds himself in a new role as the single, key swing vote in many areas of constitutional law.

Background: The PBABA, and the Lower Federal Courts' Decisions

The PBABA authorizes fines and/or jail terms of up to two years for any doctor who performs a certain kind of late-term abortion (called by Congress a "partial birth abortion") -- a procedure Congress tried to define in the Act itself.

A number of federal district courts invalidated the Act because it does not provide a narrow and non-vague definition of the prohibited procedure itself, and (perhaps more importantly) because the Act does not have an exception that would permit the procedure to be used when its use would be in the best interests of the mother's health.

In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court said that a pregnant woman has a constitutional right to abortion procedures that are "necessary, in appropriate medical judgment, for the preservation of [her] life or health" (emphasis added).

Then, in 2000, in Stenberg v. Carhart a five-member majority of the Court applied this language in Casey to strike down a Nebraska statute that prohibited certain late-term abortion procedures that the Nebraska legislature had also termed "partial birth" abortions. The Stenberg majority reasoned, among other things, that Nebraska's definition of "partial birth" abortions swept in procedures that at least many experts in the medical profession think can sometimes be the best and safest course of action for a woman seeking to end pregnancy.

Based on these precedents, every U.S. Court of Appeal to rule on the issue has agreed with the district courts that the PBABA is unconstitutional. Because of this lower court consensus, some observers were mildly surprised when the Supreme Court agreed to hear one of these cases, coming (coincidentally) from Nebraska and the U.S. Court of Appeals for the Eighth Circuit. (Dr. Carhart is a Nebraska abortion provider and the challenger in both the 2000 case and the one on which the Court just granted review; that is why his name is in both case titles.).

What will Justice Alito's and Chief Justice Roberts' Takes Be?

To Justice Alito's credit, he did not hide his antipathy for Roe v. Wade and its progeny in his Senate confirmation hearings, repeatedly declining to characterize any of the Court's abortion jurisprudence as settled law. But what is Justice Roberts' view? That is harder to discern.

Unlike Justice Alito, Chief Justice Roberts did in the confirmation process describe Roe and Casey as "settled" precedent. Roberts also portrayed himself more generally in his hearings as a lawyerly, incremental jurist who believes very strongly in principles of doctrinal stability and stare decisis.

In ruling on Congress' PBABA, of course, Chief Justice Roberts will likely have to let us know what he really thinks about the Court's abortion precedents, including Roe, Casey and Stenberg. As Michael Dorf pointed out in a column last month, the New Hampshire parental consent abortion case handed down earlier this Term did not force Chief Justice Roberts to reveal his views; the focus there was primarily on the proper remedy for conceded unconstitutionality. But in the PBABA case, although the remedial issue may be important too, the federal government is arguing strenuously against judicial invalidation at all. So it will be time for the new Chief Justice to put (at least some of) his cards on the table.

And how will he play things? I have no confident predictions, but I will note that although Chief Justice Roberts characterized Roe and Casey as settled precedents, this does not mean that he views all of the Court's abortion rulings to date as sacrosanct. In particular, Chief Justice Roberts might argue that the result in Stenberg in 2000 did not rest on the settled bedrocks of Roe and Casey.

Justice Kennedy's Embrace of Casey and His Rejection of Stenberg

That, indeed, is the position that Justice Kennedy took in Stenberg. Some astute readers will recall that in 1992 Justice Kennedy joined with Justices O'Connor and Souter to form the "centrist wing" of the Court in Casey. There, these three Justices expressed some misgivings about the whether Roe v. Wade was correctly decided in the first place, but insisted that the Court continue to adhere to Roe's "essential holding" because of societal reliance and the Court's need to chart a consistent jurisprudential course, one unaltered by political winds. So Justice Kennedy certainly agrees with Chief Justice Roberts that Roe and Casey are "settled" - he himself is largely responsible for making them so.

But in Stenberg, eight years later, Justice Kennedy voted to uphold Nebraska's ban on "partial birth" abortions - he was part of the minority in that 5-4 ruling. (Casey, had the support of 6 Justices before the two most recent additions, because Justice Kennedy was in the majority.) In particular, Justice Kennedy said in Stenberg that he thought Nebraska had good moral reasons for disfavoring the specific abortion procedures regulated by its statute, and that women would suffer no "undue burden" (the test that emerged from Casey) if doctors were forced to use other abortion procedures instead.

Let's assume - based on the signals sent in his confirmation hearings and his general methodological record over the years -- that Justice Alito will vote on this issue alongside Justices Scalia and Thomas (who have consistently rejected stare decisis in this particular realm and who thus may be unmoved by the precedent of Stenberg). Let's also assume that Chief Justice Roberts may vote the way his predecessor, Chief Justice Rehnquist, did (to uphold Nebraska's law in Stenberg). If that is the case, Justice Kennedy's vote could swing the result in favor of the federal PBABA, 5-4.

But does the fact that Justice Kennedy opposed the majority's invalidation of Nebraska's law in Stenberg mean that he will vote to uphold the PBABA? Ordinarily I would say "probably yes." Justice Kennedy's dissenting opinion in Stenberg is quite vigorous. And he has already made clear that he doesn't think Stenberg follows from his understanding of Casey and the essence of Roe, the two cases to which he feels he owes his stare decisis loyalties.

So there is some reason to think the Gonzales v. Carhart case might come out differently than Stenberg.

A Wrinkle : Justice Kennedy's Dislike of Congressional Attempts to Circumvent Court Rulings

But here's a complexity: Justice Kennedy - perhaps the key vote on the PBABA - doesn't seem to like it when Congress tries to enact laws based on its disagreement with earlier Supreme Court rulings. In a number of different settings, Justice Kennedy has written (or joined) opinions of the Court that forcefully rebuff, on separation of powers grounds, Congressional efforts to modify the effect of controversial constitutional rulings by the Court.

Here's one example: In 1990, in Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court held that the Free Exercise Clause of the First Amendment does not require states to grant exemptions from generally applicable laws to persons whose sincere religious exercise may be burdened by those laws. Congress didn't like that ruling, and promptly passed the Religious Freedom Restoration Act ("RFRA"), which purported to require states to accommodate free exercise of religion even though the Court had just said the Constitution itself requires no such accommodation.

Justice Kennedy then wrote an opinion for the Court in City of Boerne v. Flores striking down RFRA as being beyond Congress' powers. In the opinion, Justice Kennedy strongly (perhaps too strongly) reaffirmed that whether Congress agrees with the Supreme Court's constitutional interpretations or not, it cannot try to alter or undo the Court's constitutional rulings by ordinary legislation.

The Court said the same thing -- in an opinion joined by Justice Kennedy in Dickerson v. United States -- about Congress' efforts to undo the Miranda ruling. (As readers likely are aware, Miranda requires police to give warnings before interrogating custodial suspects.) Congress' attempt by legislation to replace the Miranda warnings approach with something else was rejected by the Dickerson Court, on the grounds that Miranda involved an interpretation of the Constitution, and that Congress had no business trying to undermine or circumvent it.

Finally, consider yet a third example of Congressional action in response to a Supreme Court ruling with which Congress disagreed. After the Supreme Court struck down Texas' anti-flag burning law as violating the First Amendment in Texas v. Johnson, Congress passed its own (nearly identical) anti-flag burning law and pressed the Court to uphold it on the ground that Congress' statutes and constitutional interpretations are entitled to respect. The Court - again in an opinion joined by Justice Kennedy - rebuffed the effort in United States v. Eichman. The Eichman majority said that Congress' invocation of a "national consensus" against flag burning was unavailing and that a national majority represented by Congress has no more leeway than do states to circumvent the Court's constitutional rulings.

In each of these three opinions (and others as well), Justice Kennedy has seemed to bristle when Congress takes issue with the Court's past rulings. This seems to be true even when (as in the Miranda setting) Justice Kennedy might not have himself agreed with the original ruling that Congress is trying to circumvent.

In other words, Justice Kennedy appears to have a strong sense of the institutional independence of the Court, and of the need for the Court to remind Congress of the Court's special role in constitutional interpretation. (I have elsewhere argued that this perspective may not be entirely correct; I mention it here not to defend it, but rather to say that Justice Kennedy seems to embrace it.)

A Possible Distinction: Law versus Fact?

The federal government argues that, in the PBABA case, precedents like Boerne and Dickerson are beside the point. It contends that in those earlier cases Congress was taking issue with the constitutional standard the Court had adopted, and was trying to substitute its own constitutional test for the one articulated by the Justices. But here in the PBABA - the federal government argues -- Congress is merely making a "factual" finding that partial birth abortions are never medically necessary or appropriate to promote a woman's health, so that no health exception in the Act should be required. In making this factual finding, the government argues, Congress is entitled to significant deference.

It is true that Boerne and Dickerson (and Eichman too) involved what we might call "pure" questions of law such as: What does the Constitution's Free Exercise Clause require? Or, which confessions are "compelled" within the meaning of the Fifth Amendment? It is also true that the question of whether a health exception is required in the PBABA is more of a mixed question of law and fact than a pure question of law.

But as Justice Breyer wrote for the Court in Stenberg, "the word 'necessary' in Casey's phrase 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother' cannot refer to absolute necessity or to absolute proof." As Justice Breyer understood, the ultimate question posed by Stenberg (and by the PBABA case as well) is how much leeway courts must give to governments, to doctors, and to patients, respectively, to forbid or utilize particular procedures. Whether a specific procedure is "necessary" for good health as a constitutional matter may surely involve medical facts, but it also involves legal and policy judgment.

To put the point another way, let's assume that the question of whether a particular late-term abortion procedure is medically necessary for a woman's health can indeed be called a factual one. Even so, the question is one of "legislative" fact -- meaning that there is residual uncertainty that must be resolved by using policy values to give meaning to legal standards. It is not, by contrast, one of "adjudicative" fact (where there is supposed a single correct, accurate factual answer to an essentially historical or empirical question).

Moreover, on the key issue of how much deference is owed to Congress' findings as to these medical "legislative" facts, the Court already seemed to make a legal ruling of sorts in Stenberg.

Congress' factual record vis-à-vis the federal PBABA does not appear to be qualitatively stronger than Nebraska's parallel record on the law at issue in Stenberg. Thus, if a jurist were to come out the other way in the PBABA case, it would likely be because he was affording Congress some deference.

But Justice Kennedy argued for deference to the legislature in Stenberg itself, and the majority apparently rejected his argument. In dissent, Justice Kennedy wrote that "[c]ourts are ill-equipped to evaluate the relative worth of particular surgical procedures [and that] [t]he legislatures of the several States have superior factfinding capabilities in this regard."

Yet Justice Kennedy's plea for deference to legislative factfinding in Stenberg was to no avail: Remember, he voted with the minority in that case. And that means, in turn, that the Stenberg majority might be read to have held, as a matter of constitutional law, that in interpreting the word "necessary" in Casey, the Court must look hard at the underlying evidence itself, rather than defer to legislative judgments of what is medically appropriate or helpful.

Again, Congress' factual record and factfinding process seems in no way qualitatively superior to or worthy of more deference than Nebraska's. Accordingly, if the Stenberg majority did indeed set precedent on the deference issue, there seems no reason to not to apply that precedent to Congress, too.

And if the Stenberg majority did indeed set precedent on the deference issue, then Congress' enactment of the PBABA flouted that very precedent -- by attempting to review facts the Court had already examined, and come to a different conclusion that the Court had reached.

Justice Kennedy's dislike for Congressional disagreements with the Court's constitutional interpretations would thus seem to be implicated.

With Justice Kennedy's Instincts as A Jurist In Tension, The Result is Uncertain

I have no sense of how these competing instincts - inclination to uphold bans on late-term abortions. and disinclination to allow Congress to circumvent constitutional rulings by the Court - will ultimately play out for Justice Kennedy. But I do know that this tension will be an interesting one to watch when the case is briefed, argued and decided.