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Thursday, Feb. 14, 2002

The national debate about abortion rights is a perennial one--Roe v. Wade approaches its thirtieth anniversary and still the controversy rages. Yet it's fair to say that, for the past several months at least, September 11 and other recent cataclysms have kept the abortion issue on the margins of the national consciousness. Now, however, the issue appears to be returning to the fore, in large measure at the behest of the Bush Administration.

As Sherry Colb discussed in this space yesterday, the Department of Health and Human Services recently proposed a federal regulation that would classify embryos and fetuses as "unborn children" for insurance purposes. The proposal has raised fears in the pro-choice community that the federal government is attempting to chip away at Roe by according rights of personhood to the unborn.

Meanwhile, in another development last week, the United States Department of Justice filed a "friend of the court" brief--amicus curiae, in lawyers' Latin--in a case before the United States Court of Appeals for the Sixth Circuit involving abortion rights. In its brief, DOJ urged the court to reject a challenge to an Ohio law banning a form of late-term abortion known to its opponents as "partial-birth" abortion.

DOJ should not have filed the brief, for the federal government had no proper interest in the case. The United States is not a party, and no federal program or law is directly implicated.

The government's decision to file the amicus brief anyway, despite the lack of a bona fide federal interest in the case, may well reflect a renewed political determination by the Bush Administration to align the federal government with the pro-life community.

The Issue in the Ohio "Partial-Birth" Abortion Case: The Scope of Stenberg

The issue in the Ohio case, Women's Medical Professional Corporation v. Taft, is essentially whether Ohio's ban is sufficiently different from a Nebraska "partial-birth" abortion law that the Supreme Court struck down just two years ago in Stenberg v. Carhart.

In Stenberg, the Justice Department (then under the Clinton Administration) filed an amicus brief arguing that the Nebraska law banning "partial-birth" abortion was unconstitutional. DOJ argued both that the Nebraska law was too vague and--using the terminology of the case in which the Court reaffirmed Roe, Planned Parenthood v. Casey--that the law imposed an "undue burden" on women seeking abortions.

The law's burden was undue, DOJ contended, because the law prohibited the late-term method in question, even when any other method would compromise the pregnant woman's health. The Supreme Court agreed that the Nebraska ban was unconstitutional, in part because it failed to provide an exception to protect the woman's health.

As mentioned above, the case is now on appeal before the Sixth Circuit, and DOJ has filed an amicus brief. The principal argument of the brief is that the Ohio law's exception is sufficient, because it does not pose a "substantial obstacle" to a woman's obtaining an abortion.

The Tension Between the Abortion Positions of the Clinton and Bush Justice Departments

DOJ's brief in the Ohio case does not expressly disavow its Stenberg brief, but the two briefs are in considerable tension. In Stenberg, DOJ took the position that a woman must be able to have a so-called "partial-birth" abortion if other methods would compromise her health; in the Ohio case, DOJ appears to be trying to narrow the circumstances in which that alternative is available.

On its own, the fact that the Clinton and Bush Administrations might take different positions on this issue is not particularly surprising. A new Administration brings a new Department of Justice, with new politics. And the question whether the Ohio law complies with the Supreme Court's decision in Stenberg is one about which reasonable minds could disagree.

Why the Decision to File An Amicus Brief Is More Striking than the Brief's Content

Thus, it is not especially striking which side the Bush Justice Department decided to take in the Ohio case. What is surprising, however, is its decision to pick a side at all, at least at this stage of the case.

No federal entity is a party to the Ohio case; no existing or proposed federal laws are implicated; and the Justice Department's brief identifies no federal programs that might be affected. The brief does, however, note that "President Bush has expressed support for . . . legislation" like the Ohio law. Is such "support" enough for the federal government to weigh in? Put another way, does a policy position alone constitute a federal interest sufficient for the federal government to weigh in on a case involving the constitutionality of a state law with mostly local effects?

Why An Amicus Brief Made Sense In Stenberg

Some background is in order to understand the significance of this question. In cases before the Supreme Court, the United States (through the Justice Department) regularly files amicus briefs in cases implicating, in one way or another, the "interests of the United States." It is critical to understand, though, that the purpose of such filings is not simply to reflect the political preferences of the current administration. Rather, such briefs are appropriately filed to protect and advance the broader, non-partisan, long-term institutional "interests of the United States."

Second, federal Medicaid and Medicare programs provide qualified women with paid abortion services in cases arising out of rape, incest, and similar circumstances. Nebraska's law and the laws of the numerous other states with similar bans would have prohibited the use of the targeted "partial-birth" abortion method, even in cases of rape and incest where that particular method was necessary to protect the health of the woman. The United States has an obvious interest in the effective administration of its programs. In this instance, pursuing that interest required clarifying whether federal Medicaid and Medicare beneficiaries could continue to receive paid abortion services in circumstances prohibited by Nebraska's and other states' laws.

Finally, and perhaps most importantly, Stenberg arose at a time when not only Nebraska, but fully thirty states of the Union, had adopted so-called "partial-birth" abortion laws. The prevalence of such laws, and the fact that similar legislation was pending in Congress, reflected a pervasive national debate on the viability of these kinds of abortion restrictions. Once Stenberg reached the Supreme Court, the national debate had coalesced in a way that it was entirely appropriate for the United States to contribute its views on the appropriate constitutional standards governing this sensitive and important issue.

Why the Factors Justifying a Stenberg Amicus Brief Are Not Present in the Ohio Case

None of these factors is present in the Ohio case. No federal legislation on the topic is pending in Congress. Ohio's law does not meaningfully implicate the national administration of any federal programs. And, crucially, the question of "partial-birth" abortion is not the matter of pressing national concern that it was two years ago.

While the federal courts heard over fifteen challenges to various states' late-term abortion laws leading up to Stenberg, such cases are far more rare today. Moreover, since Stenberg there has not been any sustained legislative campaign in the states to pass new laws in this area. Rather than respecting this relative quiescence, DOJ's brief risks breaking it by serving as an implicit invitation to states to pass such laws, and a promise that the Bush Administration will stand with them if they do.

Under these circumstances, it is difficult to understand what legitimate national interest is being served by the Justice Department's brief. In fact, it appears to be motivated principally by a desire to provide a legal justification for President Bush's political preference for certain abortion restrictions. Far from pursuing the non-partisan interests of the United States, such a filing risks returning us all to the partisan abortion rights battles.

Trevor Morrison is a lawyer in private practice in Washington, DC. He previously spent two years in the U.S. Department of Justice, first as a Bristow Fellow in the Office of the Solicitor General, and then as an Attorney‑Advisor in the Office of Legal Counsel.

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