Respondent challenged that federal act that bans abortions that involve partial delivery of a living fetus.
Where the State has rational basis to act, and 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 to promote respect for life, including life of the unborn.
The Partial-Birth Abortion Ban Act of 2003 regulates abortion procedures. In 2003, after this Court’s decision in Stenberg, Congress passed the Act at issue here. The Act punishes knowingly performing a partial-birth abortion. First, the person performing the abortion must vaginally deliver a living fetus. The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act is inapplicable to abortions that do not involve vaginal delivery. The Act does apply both previability and postviability because a fetus is a living organism while within the womb. The Act also requires that a doctor must perform an overt act, other than completion of delivery, that kills the partially delivered living status.
Does the Act that ban abortions that involve partial delivery of a living fetus violate the Constitution?
Yes, because the respondent has not demonstrated that the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where necessary, in appropriate medical judgment, for the preservation of the health of the mother.
Casey makes it clear that, in determining whether any restriction poses an undue burden on a large fraction of women, the relevant class is not all women, nor all pregnant women, nor even all women seeking abortions. Rather, a provision restricting access to abortion, must be judged by reference to those women for whom it is an actual rather than an irrelevant restriction. They very purpose of a health exception is to protect women in exceptional cases.
The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not follow; that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant the full term, thus reducing the absolute number of late-term abortions. The medical profession may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand.