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NRL News Q&A: The Supreme Court and Partial-Birth Abortion It was not until April 18, 2007, in Gonzales v. Carhart, that the Supreme Court allowed a legislature to prohibit any method of abortion. As recently as 2000 the justices invalidated Nebraska’s ban on partial-birth abortion, and similar bans in 26 other states. But in April the Court upheld a differently worded federal ban on partial-birth abortion in Gonzales. What is the significance of Gonzales? Let’s begin at the beginning. What is partial-birth abortion? Partial-birth abortion is a legal term of art Congress used to describe a procedure that so crosses the line that it prompted even pro-abortion Senator Daniel Patrick Moynihan to exclaim, “I think this is just too close to infanticide. A child has been born and it has exited the uterus, and what on Earth is this procedure?” In very clear and unambiguous language, a “partial-birth abortion” was described as an abortion in which the abortionist “delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.” What reasons did the Court give in Carhart for finding Nebraska’s ban uncon-stitutional? First, Nebraska defined partial-birth abortion as a procedure in which the doctor delivers a “substantial portion of the fetus” into the vagina before committing an act which kills the fetus. The Court ruled that this description was vague and could also refer to dismemberment abortions, and therefore concluded that the law could ban almost all abortions after 18–20 weeks. Second, the trial court gave greater weight to the testimony of a practitioner of partial-birth abortion, Dr. Carhart, than to conflicting evidence by specialists in maternal-fetal medicine on whether partial-birth abortion offered a marginal health benefit. On this basis the judge found the law unconstitutional because it lacked a “health” exception, and the Supreme Court agreed. What did Congress do to ban partial-birth abortion? Two congressional bills banning partial-birth abortion were vetoed by pro-abortion President Bill Clinton. After the Carhart decision, Congress rewrote its bill to include both a precise definition of partial-birth abortion with anatomical landmarks and with congressional findings explaining why partial-birth abortion is never medically necessary. Pro-life President George W. Bush signed the Partial-Birth Abortion Ban Act in 2003. What happened to the federal ban on partial-birth abortion in court? The day the ban became law, Dr. Leroy Carhart, Planned Parenthood, and the National Abortion Federation challenged the ban in three federal district courts. On the basis of Carhart, the trial judges and all but one appellate court judge found the federal ban unconstitutional. The Court reviewed two of these rulings, and, in Gonzales, a 5–4 majority found the federal ban constitutionally valid. Why did the Court arrive at different decisions in Carhart and Gonzales? First, there were significant changes on the Court. One justice who supported the Carhart decision (O’Connor) and one who had dissented (Chief Justice Rehnquist) had been replaced by Justice Alito and Chief Justice Roberts. Both of the new justices were part of the Gonzales majority which included Justices Kennedy (who wrote the opinion), Scalia, and Thomas. Second, the federal ban describes partial-birth abortion in a way that even more clearly excludes the dismemberment (“D&E”) method. Third, the Court ruled that a lack of medical consensus on a health question should not foreclose Congress’s ability to legislate. Fourth, what is often called the “abortion distortion” factor—the Court’s tendency to deviate from the ordinary rules it uses to decide cases when the issue is abortion—was less on display than is typically the case. What are some examples of “abortion distortion”? 1. The Court normally reviews laws with a deferential standard, giving legislatures the benefit of the doubt. In abortion cases, however, these rules were ignored. Courts sometimes stretched to find an unconstitutional meaning to invalidate abortion laws, rather than reading words to favor constitutionality. In Gonzales, the Court vowed to follow Casey’s standards of review and statutory interpretation. 2. Normally, one brings an “as-applied” challenge against a law. The attempt is to show that the law would harm the plaintiff in a way the Constitution prohibits. If the judge agrees, an exception is made to the law to protect the plaintiff, and similarly situated persons, from harm. However, the Supreme Court has allowed abortion laws to be challenged and invalidated in their entirety when an abortionist shows one situation in which hypothetically the law has an unconstitutional application to some women. 3. In Gonzales, the Court also recognized that abortionists had been given an almost protected status in law, so wary were courts to permit regulations that might have a minor restrictive effect on women’s access to abortion. “The Court need not give abortion doctors unfettered choice in the course of their medical practice, nor … elevate their status above other physicians. …,” Justice Anthony Kennedy wrote. Kennedy added (referring to what he called the “third premise” of Casey) “that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” What does Gonzales say about the State’s interests in regulating and restricting abortion? Gonzales recognizes legitimate interests of the State which may provide a rational basis for future legislation: “preserving and promoting fetal life”; “regulating the medical profession in order to promote respect for life, including the life of the unborn”; and providing “a reasonable framework for a woman to make a decision that has such profound and lasting meaning,” through truly informed consent. What does Gonzales mean for future abortion cases and regulations? Unknown. For one thing, it’s impossible to know who will be on the Court the next time it addresses an abortion issue. For another, Justice Kennedy, who wrote the majority opinion in Gonzales, said in Casey that he favors the “core holdings” of Roe v. Wade. But in the long term, if the Court maintains its renewed attention to the facts on abortion and its new evenhandedness in assessing arguments on both sides of the issue, it provides a basis for renewed hope among pro-life advocates. |