Gonzales v. Carhart

In Roe v. Wade, the Supreme Court held that, under the right to privacy inherent in the Due Process Clause of the Fourteenth Amendment, a woman has the fundamental right to terminate her pregnancy. 410 U.S. 113, 147 (1973). Although the government has a compelling state interest in protecting potential life, the Court determined that this governmental interest only permits the government to regulate abortions performed after the fetus reaches viability. Id. at 164. The Court clarified the scope of the government’s authority to regulate abortions in Planned Parenthood of Southeastern Pennsylvania v. Casey. 505 U.S. 833 (1992). In Casey, the Court held that the government cannot place a substantial obstacle in a woman’s path to an abortion. Id. at 877. Included in the definition of a substantial obstacle are abortion regulations that would pose a significant threat to a woman’s health or life. Id. at 880, 978. Thus, Casey says that the government can regulate abortions only to the extent that the regulation does not pose an undue burden to a woman’s constitutional rights. Id. at 877.

In 2003, Congress limited this constitutional right when it enacted the Partial-Birth Abortion Ban Act (“Ban”), which establishes civil and criminal liability for doctors who partially deliver a “living fetus” for the purpose of committing an “overt act” that the doctor knows will kill the fetus. 18 U.S.C. Section 1531(b)(1)(A). Notably, the language of the Ban does not specifically mention the D&X and D&E procedures, but targets deliveries of the fetus up to a certain anatomical point. Id. The government argues that the Ban’s definition targets D&X procedures and excludes D&E procedures, Brief for the Petitioner at 46, while Carhart contends that the definition is broad enough to encompass both D&X and D&E procedures. Brief of Respondents at 11. Prior to the Ban, however, the Supreme Court struck down a similar state partial-birth abortion ban in Stenberg v. Carhart. 530 U.S. 914, 934-35 (2000). In Stenberg, the Court struck down a Nebraska statute because the ban was overbroad and lacked an exception to preserve the mother’s health. Id. at 934, 939. The Court stated that the state ban’s lack of a health exception, particularly where prohibiting intact D&E and D&X procedures, posed unnecessary health risks to the mother that constitute an undue burden to women. Id. In terms of overbreadth, the Court said that, because the Nebraska statute did not clearly define D&X, one could read the statute such that the ban extended to certain standard D&E procedures. Id. at 938–39. Congress enacted the Ban in response to Stenberg, holding numerous hearings and debates, after which it determined that partial-birth abortion is “never medically indicated to preserve the health of the mother.” Pub. L. No. 108–105(13), 117 Stat. 1201, 1203.

In reviewing the present case, the Court must revisit Stenberg and decide to what extent the federal ban is consistent with a woman’s fundamental right to choose an abortion.

The Government’s Argument

The government contends that the Ban is facially constitutional because, under Stenberg, such statutes require health exceptions only when the ban presents substantial health risks to women. Brief for the Petitioner at 15–16. Moreover, to remain consistent with Casey, the Court must read Stenberg such that the undue burden must present itself for a large fraction of the women seeking an abortion. Id. at 19. In this case, before it enacted the Ban, Congress determined that partial-birth abortions are never medically necessary to preserve the mother’s health. Id. at 14. Therefore, banning only intact D&E and D&X procedures while other procedures remain available does not pose health risks significant enough to constitute an undue burden, because the potential for health risks would only burden a small fraction of women seeking abortions. Id. at 15–16. In a footnote, the government concedes that in those fractional cases, the Court should enjoin the Ban. Id. at 16, n.1 (referencing Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006)). Thus, the congressional findings support Congress’s conclusion that the Constitution does not require a health exception in the Ban. Id. at 20. Moreover, including a health exception in the Ban would undermine Congress’s governmental interests. Id.

In furtherance of this argument, the government argues that the Court traditionally has given great deference to congressional findings. Id. at 21–22. For instance, in Turner Broadcasting System, Inc. v. FCC, the Court held that, when determining a statute’s constitutionality, courts should give Congress’s predictive judgments substantial deference and only examine congressional findings to assure that Congress drew reasonable inferences from substantial evidence. 520 U.S. 180, 195 (1997). Additionally, the Constitution grants Congress the authority to weigh the validity of conflicting data as part of its legislative duty. Id. The government relies on Turner to establish that Congress is better suited than the judiciary to gather and analyze factual data concerning the Ban. Brief for the Petitioner at 22. Thus, Congress is constitutionally justified in using its own factual findings regarding the medical necessity of partial-birth abortions rather than being bound by the judicial findings in Stenberg. Id.

The government also argues that the Ban is not overbroad because, unlike the statute in Stenberg, the Ban offers precise anatomical landmarks for delivery that clearly distinguish the banned procedures from other standard D&E procedures. Id. at 47. Specifically, the Ban only applies when, in a head-first presentation, the fetus’s head is completely outside the mother’s body, or in a feet-first presentation, any part of the fetus’s trunk above the navel is outside the mother’s body. Id. In contrast, to perform a standard D&E procedure, a doctor usually delivers smaller parts of the fetus, such as an arm or foot. Id. Moreover, a doctor only violates the Ban when, at the procedure’s outset, the doctor plans to deliver the fetus to one such prohibited anatomical landmark with the intent to perform a discrete overt act, other than completing the delivery, that the doctor knows will kill the fetus. Id. Then, the doctor must perform that act. Id. Thus, the government maintains that the Ban does not reach standard D&E procedures, or even instances where a doctor intends to perform a standard D&E but ultimately, for medical reasons, performs a procedure covered by the Ban. Id. As the Ban clearly defines the prohibited procedures, the government concludes that the ban adequately notifies doctors of the prohibited procedures so that the doctor could comply with the ban. Id. at 49.

Because the Ban’s lack of a health exception does not pose an undue burden and the ban is not unconstitutionally vague or overbroad, the government argues that the Ban is constitutional on its face and, in so far as Stenberg requires the Court to strike down the Ban, Stenberg should be overruled. Id. at 12.

Carhart’s Argument

Conversely, Carhart argues that the Ban threatens women’s health, poses an undue burden to women seeking and abortion and is unconstitutionally overbroad and vague. Brief of Respondents at 15–17. According to Carhart, under the Court’s interpretation of Casey in Stenberg, a statute that bans a particular abortion procedure must contain a health exception where substantial medical evidence supports that the banned procedure is sometimes necessary to preserve the mother’s health. Id. at 18–19. Here, there is evidence that demonstrates the health advantages to performing intact D&Es. Id. at 20. For example, intact D&E reduces the risk of uterine perforation, cervical laceration, hemorrhage, hysterectomy, and infection associated with standard D&E, and, for women with certain pre-existing health conditions, intact D&E is the safest procedure. Id. at 21. In Stenberg, the Court accepted this evidence of health risks associated with banning intact D&E. Id. Since Stenberg, the evidence has only been further substantiated, which explains the reason the lower courts ruled the Ban’s lack of a health exception unconstitutional. Id.

Carhart counters the government’s claim that the Court ought to defer to congressional findings by pointing out that giving such deference allows Congress to define the scope of fundamental constitutional rights, which is not authorized in Turner. Id. at 26. Instead, Turner stands for Congress’s power to make predictive judgments about unknown future events that might result from federal regulation, which is not at stake presently, because the relevant findings reflect expert medical opinions about medical procedures currently performed. Id. at 32. Ignoring the limits on congressional powers would permit Congress to encroach on the Supreme Court’s constitutional supremacy in defining and protecting fundamental rights. Id. at 26. Similarly, overturning Stenberg would also undermine the Court’s traditional duties, because it would ignore the importance of stare decisis. Id. at 37.

Finally, Carhart argues that the Ban is unconstitutionally overbroad and vague, because doctors can reach the ban’s specified anatomical landmarks when they perform non-intact D&Es. Id. at 40. For example, when performing a standard non-intact D&E in a feet-first presentation, a doctor may deliver a fetus past the navel and then dismember the fetus rather than puncturing the fetus’s skull, both of which could be found to violate the ban even though only the latter is expressly prohibited. Id. Carhart also argues that the ban’s specific intent requirement serves to further expand and confuse which procedures are banned, because, from the procedure’s outset, doctors often intend to remove the fetus as intact as possible even when they perform non-intact D&Es. Id. at 43. Thus, the ban extends to standard abortion procedures and insufficiently communicates to doctors when they would violate the Ban. Id.