Partial Birth Abortion Ban

On April 18, 2007, the U.S. Supreme Court ruled 5-4 that the federal Partial-Birth Abortion Ban Act of 2003 was constitutional. Gonzales v. Carhart (No. 05-380), together with Gonzales v.Planned Parenthood (No. 05-1382), cases on appeal from the U.S. Court of Appeals for the Eighth and Ninth Circuits, respectively. Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Scalia and Alito joined. Justice Thomas filed a concurring opinion, in which Justice Scalia joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.

Cardinal Justin Rigali, Chairman of the USCCB’s Committee for Pro-Life Activities, welcomed the decision, observing, “This is the first time in 34 years that the Court has upheld a ban of any type of abortion.” The Cardinal stated:

The Court’s decision does not affect the legal status of the great majority of abortions, and does not reverse past decisions claiming to find a right to abortion in the Constitution. However, it provides reasons for renewed hope and renewed effort on the part of pro-life Americans. The Court is taking a clearer and more unobstructed look at the tragic reality of abortion, and speaking about that reality more candidly, than it has in many years.

The Cardinal concluded his remarks with the hope that “today’s decision marks the beginning of a new dialogue on abortion.”

In an April 20 Life Issues Forum column, “A Court that has Begun to See,” Richard Doerflinger, Deputy Director of the Bishops' Secretariat for Pro-Life Activities, stated that "this Court has begun to take off the blinders and see abortion, recognizing its harm to children, women, the medical profession, and all of society." He concluded, “Advocates for the sanctity of human life should take encouragement from this clearer vision."

President Bush had signed the Partial-Birth Abortion Ban Act of 2003 into law on November 5, 2003 (Public Law 108-105). Congress first considered a partial-birth abortion ban proposal in 1995, a bill being approved by the 104th and 105th Congresses, and each time being vetoed by President Clinton. Efforts to override the vetoes were successful in the House but not in the Senate. Congress was in the process of passing the ban a third time when, on June 28, 2000, the

U.S. Supreme Court in a 5-4 opinion declared the Nebraska partial-birth abortion ban law unconstitutional (Stenberg v. Carhart, No. 99-830). In light of the Stenberg ruling, Congress revised the federal Partial-Birth Abortion Ban Act. A rewritten bill was introduced in 2002 and it was the 2003 version of this bill that President Bush signed into law and that the U.S. Supreme Court declared to be constitutional.

The Court argued that the judgments of the Eighth and Ninth Circuit Court of Appeals declaring the federal ban unconstitutional ran contrary to a central holding in the Court’s Planned Parenthood v. Casey (1992) opinion (a ruling on a Pennsylvania abortion statute), namely, “that the government has a legitimate and substantial interest in preserving and promoting fetal life.” The primary question before the Court in the current cases was whether the federal ban “furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.” In concert with Casey, the Court held that regulations may not place a substantial obstacle to a woman seeking an abortion before viability, but regulations through which the State expressed respect for the life of the unborn from inception of the pregnancy were permitted. In the present case, the Court applied the standards of Casey to the federal law. Summarizing its holdings, the Court argued that the federal partial-birth abortion ban “is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face.”

The Court conceded that the federal ban would be unconstitutional if it subjected women to significant health risks. (The ban allowed an exception for the life, but not health, of the mother.) The Court, however, saw a measure of uncertainty in the evidence presented, reviewing testimony not only in the Eighth and Ninth Circuit cases but also in a Second Circuit case. In this circumstance of uncertainty, the Act survived the facial challenge, because legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The Court rejected the argument that medical opinion must be unanimous:

A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power. . . . Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.

. . . [I]f some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations.

The Court then argued that the various facial attacks on the Act should not have been entertained in the first place. Exceptions should be considered in as-applied challenges where medical risk can be better quantified and balanced. With respect to the ban, the Court would consider “a proper as-applied challenge in a discrete case.”

In a short concurring opinion, Justice Thomas stated that he joined the Court’s opinion because it accurately applied current jurisprudence, including Casey. “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113 (1973), has no basis in the Constitution.” He also noted that whether the Act constituted a permissible exercise of the Commerce Clause was not before the Court.

In her dissent, Justice Ginsburg in one place called the Court’s decision “alarming,” and in another “irrational.” She saw the Partial-Birth Abortion Ban Act, and the Court’s defense of it, as nothing other than “an effort to chip away” at the abortion right established by the Court.

In the wake of the decision, a new version of the Freedom of Choice Act (FOCA) was introduced in the Senate by Sen. Barbara Boxer (D-CA) (S. 1173) and in the House by Rep. Jerrold Nadler (D-NY) (H.R. 1964). These bills were more radical than Roe v. Wade. For example, they would repeal all limitation on government funding of abortion, including the Hyde Amendment. No further action was taken on these bills.