Brief Fact Summary. A federal statute was passed that bans so-called partial-birth abortions.Â Its constitutionality was challenged under the Fourteenth Amendment.
Synopsis of Rule of Law. The federal nationwide ban on so-called “partial-birth abortions” is constitutional.Â
Facts. Following the ruling of the United States Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), which struck down the Nebraska law that prohibited abortions in which the physician delivers a “substantial portion” of the fetus into the woman’s vagina in order to perform a procedure that kills the “unborn child” and that lacked a health exception, Congress passed a federal statute, 18 U.S.C. Â§ 1531, that basically bans partial-birth abortions and addresses the constitutionally offensive portions of the Nebraska statute.Â The federal statute, unlike the Nebraska statute, defined the prohibited procedure as a deliberate delivery of a “living fetus” to the point that either the entire head (in a head-first presentation) or any part of the fetal trunk past the naval (in a breech presentation) is “outside the body of the mother,” followed by an “overt act, other than completion of delivery, that kills the partially delivered living fetus.”Â In addition, the “overt act” requirement distinguishes the intact dilation and evacuation (D&E) from the standard D&E because the act that induces death, such as puncturing the skull with scissors and then vacuuming out the brain, must be separate from the delivery and occur after the delivery to an anatomical landmark.Â In contrast, in a standard D&E, death occurs in the womb by way of dismemberment by traction when pieces of the fetus are pulled through the cervix; that is not an overt act or a “delivery” covered by the statute.Â A third difference between the federal statute and the Nebraska statute is that the federal statute only applies when the physician’s intention from the outset was to employ the prohibited procedure.Â It would not apply to an “accidental intact D&E” that may occur if the fetus unintentionally slips past one of the anatomical landmarks.
Issue. Is the federal nationwide ban on so-called “partial-birth abortions” constitutional?
Held. (Kennedy, J.)Â Yes.Â The federal nationwide ban on so-called “partial-birth abortions” is constitutional.Â The 2003 Partial-Birth Abortion Ban Act avoids vagueness problems by spelling out “anatomical landmarks” on the fetal body and setting physician intent requirements that provide reasonable notice of the particular abortion procedures prohibited.Â The plaintiffs failed to demonstrate “that requiring doctos to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions.”Â The statute does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether it is viable outside of the womb or not.Â But, under Planned Parenthood of Southeastern Pa. v. Casey, 506 U.S. 833 (1992), which reaffirmed a woman’s right to choose an abortion previability, the issue in this facial challenge was whether the statute imposed a substantial obstacle to late-term, but previability abortions.Â Casey recognized the state’s interest “in protecting the life of the fetus that may become a child.”Â That interest allows the state to restrict abortion methods that doctors might otherwise choose, “in order to promote respect for life.”Â The health exception recognized in Casey and Stenberg cannot be interpreted in a way to “set at naught” the government’s interest in fetal life.Â Here, there is “documented disagreement whether the Act’s prohibition would ever impose significant health risks on women.”Â When medical uncertainty is present, the Court defers to legislative choice.Â In addition, the mother’s health exception requirement cannot be interpreted to preclude regulation of abortion methods that further the government’s interest in protecting and respecting fetal life when there is only uncertainty in the medical community about whether a specific abortion method is ever medically necessary.Â In this case, Congress sought to promote respect for life by drawing a bright line between abortion and infanticide.Â The statute also recognizes “the bond of love the mother has for her child” by saving her from the sorrow of undergoing what she may not be told until later is a gruesome procedure.Â The Act is not invalid on its face.
Dissent. (Thomas, J.)Â The opinion “accurately applies” Casey and Roe v. Wade, 410 U.S. 113 (1973), however those decisions, while “current jurisprudence,” have “no basis in the Constitution.”
Concurrence. (Ginsburg, J.)Â The reconstituted Court’s “alarming” decision disrespected precedent, gutted the long-standing health exception requirement, and showed an obvious “hostility” to abortion rights.Â The ruling “refuses to take Casey and Stenberg seriously.”Â It ignores district court findings that intact D&E is safer for women with certain conditions and generally offers safety advantages over standard D&E, instead siding with a statute that even the majority recognized contains factual errors.Â The Court deprives women of the right to make an autonomous choice, even at the expense of their safety.Â
Discussion. Do not forget that this decision answered a facial attack on the statute, leaving open the possibility that the statute, as applied, may not survive constitutional scrutiny.Â Medical uncertainty may reverse the direction of this case; if, for example, a partial-birth abortion became medically necessary to save the life of a woman, the statute may not withstand constitutional scrutiny.