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What Might Two Supreme Court Vacancies Mean for Reproductive Rights?
While the Federal "Partial Birth" Abortion Ban Has Been Held Invalid, The Composition of the Court is About to Change

Tuesday, Jul. 12, 2005

Last Friday, in Carhart v. Gonzalez, the U.S. Court of Appeals for the Eighth Circuit held the federal "partial birth" abortion ban law invalid. But this development - significant as it is - may be nothing compared to what will occur soon.

As has been widely reported, Justice Sandra Day O'Connor is retiring, and Justice William Rehnquist seems about to do the same, meaning the President may also have the chance to select a new Chief Justice. And that, of course, means President Bush has the opportunity to cause an issue-driven, rightward shift in a Court that has gone more than a decade without a change in personnel.

In this column, I will discuss the law struck down in the Eighth Circuit opinion - the "Partial-Birth Abortion Ban Act of 2003" (PBABA) - and discuss whether the Supreme Court is likely to agree with the Eighth Circuit, even if its composition changes.

I will also focus on two abortion cases that are currently on the Court's docket - and that may be heard by the new Justices.

The PBABA: A Federal Appeals Court Says it is Invalid

In 2003, President Bush signed into the law the first nationwide abortion ban, to prohibit what abortion opponents refer to as the "partial-birth abortion." (The medical term is intact dilation and evacuation ("D&E") or dilation and extraction ("D&X")). . Earlier sessions of Congress had passed similar bans that were vetoed by President Clinton.

The law imposes both criminal and civil penalties on a physician who violates it. PBABA was unusual for many reasons.

First, the PBABA represented the federal government's first foray into regulating abortion, an issue typically relegated to the states. Coming from a Republican Administration, and given the Party's emphasis on "states' rights," such legislation seemed hypocritical.

Second, the PBABA banned a particular abortion procedure no matter how early in the pregnancy it is used - even abortions performed early in the second trimester were included.

In so doing, it intruded deep into doctors' professional judgment, and impinged on their duties to their patients - telling them that the best procedure, from the standpoint of the patient's health and safety, could be illegal. Opponents of abortion tend not to like health exceptions (as opposed to "life" exceptions), because they fear they allow much discretion to physicians (as opposed to a "life" exception, which sets a much higher standard for doctors to meet). But without a health exception, medical discretion is dangerously limited - and physicians sometimes are forced by law to opt for a procedure that is truly riskier and more dangerous for the mother.

The arguments that were made in support of the PBABA involved late-term abortions that supporters said verged on infanticide. But the law did not hesitate to encompass earlier-term abortions too.

Finally, and perhaps most unusually, the PBABA closely paralleled a Nebraska state law that the United States Supreme Court had declared unconstitutional only three years earlier in Stenberg v. Carhart.

This made the Eighth Circuit's ruling last week unsurprising: It simply applied prior precedent that was directly on point.

More up for grabs, however, is what a Court with one or two new members might do if prompted to reconsider Stenberg. Stenberg was a 5-4 ruling in which Justice O'Connor provided the "swing vote."

For the Eighth Circuit, Stenberg v. Carhart Made the PBABA Case an Easy One

In Stenberg, the Court found the law at issue unconstitutional first because it did not establish an exception to protect the health of the mother. Shockingly, neither did the PBABA.

The Eighth Circuit - quite reasonably, and in harmony with rulings of the Fourth and Ninth Circuits - read Stenberg to mean that a law prohibiting abortion must contain a health exception whenever "'substantial medical authority' supports the medical necessity of the prohibited procedure."

Congress had made a finding, in passing the PBABA, that the procedure at issue is "never medically indicated." But the Eighth Circuit pointed out that the Supreme Court itself had made a finding, in Stenberg, that in some cases, the procedure was medically necessary.

As a lower court bound by Supreme Court precedent, the Eighth Circuit had to adopt that finding, and it did. (Only significant changes in medical knowledge or technology should justify relitigation of the issue, the Eighth Circuit noted - and there had been none.)

Accordingly, the Eighth Circuit struck down the PBABA for failure to contain a health exception - just as the Fourth Circuit had done, before it, in Richmond Medical Center for Women v. Hicks.

Because the Eighth Circuit had already invalidated the PBABA on this ground, it did not reach other reasons that had led the trial judge to invalidate the law.

The other crucial holding of Stenberg - besides the ruling that a "health of the mother" exception is mandatory - involved application of the "undue burden" standard.

Originally, Roe v. Wade did not contain this standard. But when Roe was reaffirmed, in 1992, in Planned Parenthood v. Casey, Justice O'Connor - a "swing vote," in addition to Justice Kennedy, in this 6-3 decision - offered the new "undue burden" standard as a benchmark for judging the constitutionality of abortion laws.

In Stenberg, the Court held that the PBABA imposed an "undue burden" on the right to abortion, because the law's wording was so broad as to effectively ban most second-trimester abortions.

What If Stenberg Reaches a Court with New Justices?

The PBABA has often been seen as a political showpiece - a law designed to appeal to abortion opponents, yet destined never actually to be enforced, in light of the Stenberg ruling.

But what if a new Court were to overrule Stenberg? In that event, the PBABA could actually become, in the Court's eyes, valid law. Granted, the Court is very disinclined to overrule such recent precedent; Stenberg is a 2000 case.

But if Justice O'Connor were replaced by an anti-abortion zealot, that Justice might both muster the votes for the Court to grant review, and muster the votes necessary to overrule Stenberg and uphold the PBABA.

Also - though this would be implausible - it might be possible for the Court to uphold the PBABA without overruling Stenberg. When it enacted the PBABA, Congress tried to avoid running afoul of Stenberg by making its own findings about the medical necessity and potential dangers of the procedure.

In Congress' view, the Court in Stenberg had been unfairly hamstrung by the faulty findings of the trial court as to the medical necessity and safety of the procedure -- which forced the Court to strike down Nebraska's law.

(Appellate courts - including even the Supreme Court - must generally defer to trial court findings. And that has meant that a Nebraska federal district court's findings arguably compelled not only the Supreme Court's result in Stenberg, but even this week's Eighth Circuit decision - in which the Eighth Circuit deferred to Stenberg's fact findings - which were originally the Nebraska federal district court's fact findings! Those who feel federal district courts are not very powerful will find strong counter-evidence here.)

To ensure that any challenge would queue up on better footing, Congress thus made its own, somewhat remarkable, findings in passing the PBABA. It found that "partial-birth abortion is never medically indicated to preserve the health of the mother." It found that the procedure "is in fact unrecognized as a valid abortion procedure by the mainstream medical community." And finally, it found that the procedure "poses additional health risks to the mother."

If a Supreme Court, with a new justice or two, accepts Congress' findings, it may be able to distinguish Stenberg, rather than overruling it.

In light of this possibility, the PBABA - once viewed as empty posturing - may actually seem, in retrospect, to be a brilliant Republican strategy. Replacing Justices O'Connor and Rehnquist ought to leave Casey (and thus Roe) intact:

Again, Casey was a 6-3 decision, with Justice O'Connor in the majority, and Chief Justice Rehnquist in dissent. So replacing O'Connor and Rehnquist with abortion opponents would only change the lineup of justices to 5-4 - with the same result.

But Stenberg was a 5-4 decision, with Justice Kennedy dissenting. Replacing O'Connor - whose particular strong emphasis on following precedent might disappear along with her presence on the Court - might mean it becomes 4-5.

The Two Abortion Cases To Be Heard Next Term - Probably By a Re-Staffed Court

Moreover, a possible overruling of Stenberg is not the only development that may be on the horizon. The Court has already agreed to hear two other abortion-related cases next term.

The first case is Scheidler v. National Organization for Women. There, the Court will consider whether threats of violence, potentially in violation of the Hobbs Act, can serve as a predicate for a private party to obtain injunctive relief under the Racketeering-Influenced Corrupt Organizations Act (RICO).

Although RICO was enacted to respond to organized crime, its language is much broader: It targets patterns of certain federal crimes, and Hobbs Act violations are among them. Thus, if NOW prevails in the case, doctors and patients who face a pattern of threats of violence from abortion opponents will not only be able to call the police, they will also be able to sue, in federal court, the repeat-threat-makers for a court order compelling them to stop. And that order could, in turn, be enforced by contempt-of-court orders that could result in jail for repeat threateners.

A ruling for NOW could be very significant - especially in locales where police tend to be anti-abortion, but federal courts do not; threateners could end up jailed even if police choose to take no action. Conversely, if NOW is rebuffed, those who try to oppose abortion by threatening violence against women may be emboldened.

The second case is Ayotte v. Planned Parenthood, in which the Court will consider a New Hampshire parental notification law - the Parental Notification Prior to Abortion Act (PNPAA). As its title suggest, the New Hampshire law requires a doctor to notify a minor's parents prior to performing an abortion on her; in particular, it requires 48-hours notice to the parents. (Just this week, a Florida court declined to enjoin a very similar law - suggesting the Court believes it likely will be held to be constitutional.)

New Hampshire's PNPAA has exceptions for medical emergencies. Also, judges can waive the notification provision based on the minor's maturity, her best interests, or a history of abuse by her parents.

Nevertheless, the law can force teens to delay getting medically necessary abortions, such as those triggered by potentially serious pregnancy complications. That's because, like the federal PBABA, it has no "health" exception. Instead, it has only a "life" exception": An abortion can be performed without parental notification only if necessary to prevent the minor's death.

No wonder, then, that both the federal trial and appellate courts in New Hampshire found the law unconstitutional. It forces a doctor to watch the clock for two entire days, even if a young girl's pregnancy is having painful and life-threatening medical consequences. Only if the doctor is ready to say the girl is at death's very door (or is able to get a court to act on the minor's behalf), may the doctor act without parental consent. And this is the case no matter which trimester the patient's pregnancy is in.

The Court doubtless would not have granted review in Scheidler and Ayotte if their outcomes were a foregone conclusion. Next Term, look for these cases to divide the Court - whatever its composition when the justices hear them.

As I explained above, thanks to Justice Kennedy - who made Casey a 6-3 decision -- the core protection for a woman's right to choose is likely to survive even two Supreme Court vacancies. But the scope and contours of the right are very much up for grabs.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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