By Dave Caddell
The Bush Administration has petitioned the Supreme Court to consider whether a federal law that bans a medical procedure known as "partial-birth abortion" is constitutional--more narrowly, whether the federal law violates a woman's fundamental right to choose to have an abortion. The federal law, titled the Partial-Birth Abortion Ban Act of 2003, imposes criminal liability on a physician who knowingly performs a partial-birth abortion.
The Administration's request comes in response to an Eighth Circuit Court of Appeals ruling in Gonzales v. Carhart. In that case, the appellate court held that the federal law criminalizing partial-birth abortion is unconstitutional because it lacks a "health of the mother exception." While the statute includes a provision which exempts a physician from liability for performing a partial-birth abortion to save the life of the mother, it does not provide such an exception to protect the health of the mother. Moreover, the Eighth Circuit declared that the courts were not obligated to accept Congress' determination that partial-birth abortion is never necessary to preserve the health of the mother.
Even though the congressional findings were the product of years of hearings that included testimony from expert medical associations, the court disregarded those hearings in favor of mere weeks' worth of trial testimony. Believing the Eighth Circuit's reasoning to be flawed, the Bush Administration has asked the Supreme Court to look at the issue.
What Is Partial-Birth Abortion?
The specific issue being brought before the High Court deals with an attempt to ban the performance of a pair of medical procedures collectively referred to as "partial-birth abortion." The two procedures used in a partial-birth abortion are the "Dilation and Extraction" (D&X) and "Dilation and Evacuation" (D&E). Both are used to abort in later stages of pregnancy, with the D&X procedure being much rarer than D&E. D&X abortions are procedures whereby the abortionist pulls the child from the cervix while the child is intact, subsequently using instruments to "extract" the "intracranial contents" of the fetus by collapsing the skull prior to delivery. The D&E procedure, on the other hand, occurs when the abortionist uses medical instruments to pull the child from the uterus through the birth canal. While being forcibly removed from the mother, the child, due to the fragility of its tissue, is ripped apart.
Abortion Is No Stranger to Courts
Abortion has been at the center of constitutional law since the Supreme Court first entered the debate in 1973 with its decision in Roe v. Wade. Over the past 32 years, the Court's decisions and insights governing abortion law have drastically evolved. In Roe, for example, the Supreme Court held --that a woman's fundamental right to an abortion is inherent in her constitutional "right to privacy." However, 19 years later, in Planned Parenthood v. Casey, the Court accepted the opportunity to revisit its prior holding in Roe. While the Court in Casey did not reverse the Roe decision--in fact, it affirmed Roe's central holding that a woman's right to choose an abortion is a fundamental right protected by the Constitution--it did establish a new framework in which the abortion issue is to be analyzed. In ruling that the government may not place an "undue burden" on a woman's right to obtain an abortion, the Court reasoned that the prior trimester framework established under Roe was flawed. Instead, the Court in Casey ruled that a government's attempt to restrict a woman's access to an abortion is an unconstitutional "undue burden" if it has the purpose or effect of placing a substantial obstacle in the woman's path to an abortion. Since Casey, the Court has steered clear of opportunities to again reestablish a general framework in which to dissect the constitutionality of statutes regulating and restricting abortions.
A Specific Look at Partial-Birth Abortion: Stenberg v. Carhart
A mere five years ago, the Court addressed the more narrow legal issue of whether a government attempt to restrict only a certain type of abortion places an "undue burden" in a woman's path to obtaining an abortion. In Stenberg v. Carhart (2000), the Supreme Court examined whether a Nebraska state statute, which made it a felony to perform a partial-birth abortion, was an unconstitutional effort to create an undue burden on a woman's right to an abortion. The Nebraska statute prohibited all partial-birth abortions except when the procedure was necessary to save the life of the mother. Moreover, the statute defined the term "partial-birth abortion" very broadly as "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child."
After examining this statute, the Court ruled in Stenberg that Nebraska had, as a matter of law, unconstitutionally interfered with a woman's right to obtain an abortion. First, the Court held that because the statute was so broad it prohibited both types of partial-birth abortion procedures--D&X and D&E. Consequently, the Court reasoned, the statute placed an undue burden on women wishing to obtain an abortion because it effectively prohibited an overwhelming number of abortions. Similarly, the Court held that the statute was too broad because it prohibited partial-birth abortions of both viable and nonviable fetuses.
Second, although a much more problematic conclusion for the Court, it concluded that the statute was unconstitutional because it lacked an exception permitting a partial-birth abortion when such a procedure would be necessary to preserve the health of the mother. This part of the Court's analysis was more difficult for the justices to resolve because there were strikingly different medical findings and theories offered by medical experts. Experts seemed to be divided about whether partial-birth abortions were ever really necessary to save the life of the mother. However, the High Court found itself constrained to apply the findings by the trial court on this issue, which concluded that the evidence suggesting that partial-birth abortions were sometimes necessary to save the life of the mother was more convincing.
Congressional Response and Judicial Treatment: Gonzales v. Carhart
In response to the Supreme Court's holding in Stenberg v. Carhart, Congress passed the Partial-Birth Abortion Ban Act of 2003. In drafting the law, Congress sought to remedy the constitutional problems identified by the Court in the Nebraska statute. However, the federal law was drafted in a similar manner to the Nebraska statute.
While the federal law permits a partial-birth abortion to protect the life of the mother, it too lacks an exception to allow the procedure to protect the health of the mother. Moreover, although the federal law's definition of "partial-birth abortion" was narrower, it too has been criticized as very broad.
The key difference between the Nebraska statute that was struck down in Stenberg and the federal law at issue here is that in passing the Partial-Birth Abortion Ban Act of 2003, Congress concluded that partial-birth abortion is never necessary to protect the health of the mother. Congress' conclusion on this matter was based on numerous testimony and evidence presented by medical experts. Congress stated in its findings that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." In fact, relying on the expert testimony presented to it, Congress further found that "partial-birth abortion poses serious risks to the health of a woman undergoing the procedure." These findings are very significant because, as stated above, in Stenberg the Court was bound by the factual findings of the trial court, which concluded that medical evidence suggested that partial-birth abortions were sometimes necessary to preserve the health of the mother. However, Congress' findings were quite the opposite--not only are partial-birth abortions never necessary to preserve the health of the mother but, instead, sometimes harm the mother's health.
Four physicians who perform late-term abortions have now brought a lawsuit in federal court challenging the statute, claiming that the law is unconstitutional or that it is overbroad. As such, it applies to both D&X and D&E procedures, and it lacks a provision permitting the procedure to preserve the health of the mother.
The district court judge agreed. In reasoning that the federal law contained the same constitutional problems that were identified in the Nebraska statute, the judge ruled the statute unconstitutional. In addition to striking the statute because it was too broad and it generally created an "undue burden" on a woman's access to an abortion, the district court's ruling included a very suspect rationale. The district court judge determined that, despite the extensive legislative fact-finding by Congress which supported its conclusion that partial-birth abortion was never necessary to preserve the health of the mother, the court was not bound by this congressional conclusion. In reaching this conclusion, the district court disregarded prior case law supporting the notion that courts must defer to congressional findings that are supported by substantial evidence. Instead, despite the testimony offered by several expert medical associations such as the American Medical Association and the Association of American Physicians and Surgeons, the judge determined that the congressional findings did not deserve deference in this instance because "a substantial body of contrary, responsible, medical opinion was presented to Congress" and because "the trial evidence establish[ed] that a large and eminent body of medical opinion believes that partial-birth abortions provide women with significant health benefits in certain circumstances." In effect, despite three years of congressional fact-finding, the judge substituted his own judgment for that of Congress.
On appeal, the Eighth Circuit Court of Appeals also ruled the statute unconstitutional. The appellate court reasoned that although the Stenberg case did not forever prohibit bans on partial-birth abortions, such bans would remain unconstitutional until "at some point (either through an advance in knowledge or the development of new techniques, for example) the procedures prohibited by the Act will be rendered obsolete." Furthermore, the appellate court conceded that there is evidence which undermines the advantages identified in Stenberg claiming that partial-birth abortions sometimes preserve the mother's health. Despite these concessions, the appellate court ruled that the federal statute was unconstitutional because it lacked such an exception.
Where Do We Go From Here?
Shortly after the Eighth Circuit decision, Attorney General Alberto Gonzales submitted an appeal asking the U.S. Supreme Court to weigh in on the issue. Whether the Court will do so remains unclear. Clearly, this case could help the Court fill serious gaps in the contemporary framework governing the abortion issue. Furthermore, this issue has been raised at a time when the composition of the Court is very unclear. With Chief Justice John Roberts' recent appointment and confirmation, a critically important seat on the bench remains to be settled due to the announced retirement of Justice Sandra Day O'Connor. Justice O'Connor has been a vitally important swing-vote on many issues, including abortion--supplying the crucial swing vote in Stenberg. A new justice who views the constitutionality of abortion in a different manner than Justice O'Connor could radically alter the established abortion framework.
Even though the make-up of the Court remains unsettled, one thing is clear--this appeal offers the High Court the opportunity to rule on several critically important constitutional issues. First and foremost, it gives the Court a chance to revisit the issue of abortion altogether. While it seems that the Court has established the final framework in which to analyze abortion cases, there remain unsettled issues.
The Court needs to determine how far Congress (or the states) may go in determining whether particular types of abortion procedures, such as partial-birth abortion, should be banned. Although the Court touched on this issue in Stenberg, peripheral issues remain. For instance, this case would provide the Court with an opportunity to establish how much deference courts must afford congressional findings as they relate to laws regulating abortion. There is ambiguity. Indeed, the Eighth Circuit's ruling--that congressional findings do not deserve deference in this case--seems inconsistent with an overwhelming weight of judicial authority. The Supreme Court has routinely held that the legislature is a more appropriate branch to consider the facts. They have the time and resources to gather, weigh and consider an incredible amount of information on any given issue. The judiciary, on the other hand, is very limited in this respect. Consequently, the Supreme Court must decide whether Congress' findings--supported by years of testimony--will be trumped by a federal court's conclusion based on weeks of testimony.