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Abortion on the Horizon

Daveed Gartenstein-Ross and Adam White | The Weekly Standard | Thursday, March 16, 2006

Abortion on the Horizon

March 16, 2006

THE SEASON OF ABORTION LITIGATION is in full bloom. South Dakota's passage of a bill banning all abortions has captured most of the headlines, and Mississippi is considering similar legislation. Meanwhile, the Supreme Court has quietly decided two abortion cases this term--the first dealing with the process of invalidating abortion statutes that are unconstitutional in the case of medical emergencies; the second involving whether abortion protesters have violated the RICO Act. More significant, the Court granted certiorari last month in what may be the most momentous abortion case in more than a decade: Gonzales v. Carhart. Gonzales involves a constitutional challenge to the Partial-Birth Abortion Ban Act of 2003, which outlaws partial-birth abortions throughout the country. While Roe v. Wade will survive Gonzales, the issues involved are significant, such that this case may be a harbinger of things to come in the battle over abortion.

TO UNDERSTAND GONZALES V. CARHART, one must begin with the Court's last highly-publicized abortion case, Stenberg v. Carhart. (Yes, the Carhart in both cases is the same person: Nebraska-based abortion doctor Leroy Carhart.) In that 2000 case, the Supreme Court held 5-4 that a Nebraska law banning partial-birth abortions was unconstitutional. Stenberg was decided against the legal backdrop of the landmark Roe v. Wade decision and its 1992 affirmation in Planned Parenthood v. Casey. Together, Roe and Casey provide women with the right to an abortion until viability, the point at which a child born prematurely has a chance of survival. Generally speaking, states are free to ban abortions after the point of viability as long as their statutes carve out exceptions for pregnancies that endanger a woman's life or health.

The Court found Nebraska's partial-birth abortion ban unconstitutional for two reasons. First, it defined the prohibited surgical techniques so broadly that it imposed on a pregnant woman's right to an abortion prior to viability. Second, it provided no exception allowing partial-birth abortions to preserve the health of the mother after viability.

Stenberg is the precedent against which the Partial-Birth Abortion Ban Act will be judged. Thus, the drafters of the legislation tried to ensure that it would not be found unconstitutional for the same reasons that the Nebraska law was struck down. The Partial-Birth Abortion Ban Act defines the proscribed procedure with greater specificity than the Nebraska law did. The dispositive point in Stenberg about interference with a woman's right to an abortion before viability shouldn't be an issue here. The real issue is whether the Partial-Birth Abortion Ban Act will be struck down because, like the Nebraska statute, it lacks an exception allowing for partial-birth abortions to preserve the health of the mother.

The lack of a health exception was no drafting error. Social conservatives worry that, as Justice Thomas wrote in his Stenberg dissent, a health exception "entirely swallows the rule" by allowing sympathetic doctors to make bogus findings of health necessity. In explaining why it includes no health exception, the Partial-Birth Abortion Ban Act itself makes a fairly sophisticated legal argument.

The Act explains that when Stenberg held that partial-birth abortions would be the safest procedure for pregnant women in some instances, the Court was required to defer to the trial court's holdings on the matter unless they were clearly erroneous. A finding of fact is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." This is a high evidentiary bar to clear--but the Congress is not required to defer to a trial court when undertaking its own findings of fact.

Thus, the Partial-Birth Abortion Ban Act lays out Congress' factual findings, and concludes that "the great weight of evidence presented at the Stenberg trial and other trials challenging partial-birth abortion bans, as well as at extensive Congressional hearings, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care." The Act then lists several cases holding that the Supreme Court is required to defer to congressional findings.

IN TRYING TO DETERMINE what the Court will decide in Gonzales v. Carhart, most observers have focused on the probable votes of Chief Justice Roberts and Justice Alito. This singular focus may be misplaced, as Justices Breyer and Kennedy--who previously weighed in on partial-birth abortion in the Stenberg case--may have a surprise or two in store.

Although Justice Breyer wrote the Stenberg opinion and is generally regarded as a liberal vote, the present case touches on a legal issue about which he has forcefully written. At the heart of the debate over whether the federal ban is unconstitutional for lack of a health exception is the question of whose fact findings should be trusted: those of the district court in Stenberg, or those of the U.S. Congress? In his 2001 dissent in Board of Trustees v. Garrett, Justice Breyer delivered a vigorous statement in support judicial deference to congressional findings of fact in a different legal context:

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its [legislative authority pursuant to the Fourteenth Amendment], to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. . . . Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have first-hand experience with discrimination and related issues. Moreover, unlike judges, Members of Congress are elected. Justice Breyer noted that Congress is not to be bound by the same standards and presumptions applied in the courts. The Partial-Birth Abortion Ban Act makes the same point: Although the Supreme Court was bound by the findings of the trial court, Congress, in crafting policy, is not. Justice Breyer--who recently authored Active Liberty, a book that is in part devoted to defending judicial deference to congressional decision-making--may well agree.

While Justice Breyer may surprise in one direction, Justice Kennedy may surprise in the other. He has played a central role in the Court's abortion jurisprudence, surprising conservatives in Casey by voting to affirm the constitutional right to an abortion established in Roe v. Wade. Nonetheless, the practice of partial-birth abortion seems too much for Justice Kennedy. He voted to uphold the Nebraska law at issue in Stenberg in a dissent that vividly details what actually happens in a partial-birth abortion, and describes it as "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."

The conventional wisdom is that Justice Kennedy will vote to uphold the federal ban, and while the conventional wisdom is probably correct, the doctrine of stare decisis (which holds that prior decisions should almost always be applied in subsequent cases) creates at least some doubt. Justice Kennedy has established himself as a strong defender of stare decisis, as his decision in Casey constitutes the most vigorous public defense of the doctrine in the past several decades: "The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. . . . A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that."

Beyond Casey, Justice Kennedy has shown particular impatience for congressional attempts to "overrule" the Supreme Court. The Court addressed an instance of this in the 1997 City of Boerne v. Flores case, where it struck down the Religious Freedom Restoration Act of 1993. Essentially, that act was designed to challenge a prior Court decision that affirmed a criminal ban on peyote, a drug used in certain religious traditions. Justice Kennedy's majority opinion was unambiguous:

When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. [I]t is this Court's precedent, not RFRA, which must control.

Gonzales, then, presents Justice Kennedy with two difficult questions: Is Stenberg controlling precedent with respect to the material issues of law and fact now before the Court? If so, can he support a departure from Stenberg?

EVEN IF THE COURT DECIDES THAT the Partial-Birth Abortion Ban Act is unconstitutional without a health exception, its precise ruling is complicated by its largely overlooked decision in Ayotte v. Planned Parenthood. There, the Court unanimously held that when an abortion restriction violates a woman's constitutional rights, the courts need not strike down the totality of the statute. Rather, the courts can nullify the portions of the statute that present constitutional problems and leave the remainder in place.

Thus, even if the Court holds that the federal ban unconstitutionally restricts abortions necessary to preserve the health of the mother, it need not nullify the statute in its entirety. The Court could leave the ban effective in all cases except the set where the health or life of the mother is at issue.

BUT THE TWO MOST INTERESTING ISSUES that Gonzales v. Carhart might touch on are not before the Court in this case. One of these issues is, of course, the continuing vitality of Roe v. Wade itself. The Roe line of cases is the foundation on which the challenge to the partial-birth abortion ban has been built. If Roe falls, so too does this challenge. But Roe's legitimacy is not before the Court in this case.

Another issue not presented to the Court is the federalism question: Does Congress actually have power under the Constitution to pass this law in the first place, or is this a state-law concern? While most conservatives will be unsympathetic to the abortion-rights argument in Gonzales, they may have mixed feelings about the federalism challenge.

In recent years, the Supreme Court has carefully scrutinized whether Congress has the constitutional power to enact various laws. The purpose of doing so is to maintain limits on Congress' power to legislate matters more properly regulated by the states. In this case, the partial-birth abortion ban was passed pursuant to Congress' Commerce Clause power. As Glenn Reynolds and Brannon Denning have written, the ban may be vulnerable on federalism grounds: "[I]t would be difficult for Congress to demonstrate how a medical procedure--usually regulated by the states--is 'economic' or 'commercial' in nature or 'substantially affects' interstate commerce. Given the small number of these procedures performed each year, it would be hard to meet the Court's relatively high threshold." While federalism is not before the Court in this case, it may form the basis of future challenges if Gonazles upholds the ban.

GONZALES V. CARHART IS AN IMPORTANT case to watch for those who care about the direction abortion jurisprudence may take. At stake is the future of partial-birth abortion in the United States. But the decision may forecast, at least in part, what the Court will decide in the coming challenge to Roe v. Wade.

Daveed Gartenstein-Ross is a Washington, D.C.-based attorney and former D.C. Circuit Court of Appeals clerk who frequently writes about terrorism and legal issues for The Daily Standard. Adam White is an attorney and former editorial page editor of the Harvard Law Record; his discussion of the federalism issues presented by proposed bans on same-sex marriage was recently republished in the tenth edition of DiClerico & Hammock's Points of View (McGraw-Hill, 2005).

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