Gonzales v. Carhart (2007)
Congress passed the Partial-Birth Abortion Ban Act of 2003
(Act). Days before President Bush signed the Act into law,
pro-abortion advocates filed three separate challenges to the act
in federal district courts in California, New York and Nebraska. At
issue before the Court were two of the challenges, one filed in
Nebraska, Gonzales v. Carhart, and one filed in
California, Gonzales v. Planned Parenthood. In both
cases, the district courts, after conducting a trial, issued
permanent injunctions against enforcement of the law. And in both
cases, the relevant appellate courts, the Eighth and Ninth
Circuits, upheld the injunctions. LeRoy Carhart is a Nebraska
physician who performs abortions. Alberto Gonzales,
then-Attorney General of the United States, defended the federal
law. He sought and obtained review in the United States Supreme
The Statute under Review
The Act provides: "Any physician who, in or affecting interstate
or foreign commerce, knowingly performs a partial-birth abortion
and thereby kills a human fetus shall be fined under this title or
imprisoned not more than 2 years, or both." The Act defines
partial-birth abortion (PBA) as an abortion in which the person
performing the abortion-
deliberately and intentionally vaginally delivers a living fetus
until, in the case of a head-first presentation, the entire fetal
head is outside the body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the navel is outside
the body of the mother, for the purpose of performing an overt act
that the person knows will kill the partially delivered living
the overt act, other than completion of delivery, that kills the
partially delivered living fetus.
The Act creates one exception, permitting a PBA when "necessary
to save the life of a mother whose life is endangered by a physical
disorder, physical illness, or physical injury, including a
life-endangering physical condition caused by or arising from the
The Court's Holding
The Court upheld the Act, holding that it furthers the
government's legitimate and substantial interest in preserving and
promoting human life. The Court concluded that the Act is not
unconstitutionally vague and did not pose an "undue burden" on a
woman's right to abortion.
The opinion was authored by Justice Kennedy and joined by Chief
Justice Roberts and Justices Scalia, Thomas, and Alito.
Justice Thomas wrote a concurrence in which Justice Scalia
joined. And Justice Ginsburg wrote a dissent joined by Justices
Stevens, Souter and Breyer.
The Court's Reasoning
1. The relevant standards. The Court
did not revisit Planned Parenthood v. Casey, but rather
assumed the validity of its principles for the present case.
The Court began by emphasizing that under Casey, a state
has a legitimate and substantial interest in protecting the lives
of unborn children. But Casey limited how the state
may advance that interest. Casey does not allow the
state to prohibit abortion before viability. The decision also
prevents the state from adopting regulations before viability that
"unduly burden" the woman's decision whether to have an
abortion. After viability, the state may prohibit abortion so
long as the prohibition contains exceptions for the life and health
of the woman.
2. Vagueness. The Court addressed an argument
that the statute is unconstitutionally vague, that is, unclear as
to what conduct it prohibited. Abortion proponents argued
that the Act covers both PBA and D&E. They said a doctor
might unintentionally perform a PBA and therefore be subject to its
penalties. First, the Court noted that the Act contains a
number of "scienter requirements" - elements that require knowledge
and intentionality. The Court also pointed to the "anatomical
landmarks" contained within the definition, which describe the
delivery of the child. If the child is not delivered, as is
the case with unborn children and D&Es, there is no violation
of the law.
3. Undue burden. The Court said the Act does
not create an undue burden.
A. Government interests. The Court said
that the Act expresses "respect for the dignity of human life" by
banning a particularly brutal method of abortion in which the
unborn child is killed just inches before delivery. The Act
also protects the integrity and ethics of the medical profession by
forbidding an act that Congress found to bear a "disturbing
similarity" to infanticide.
B. Health exception. The Court said that,
under precedent it assumes to be controlling, the Act would be
unconstitutional if the absence of a health exception subjected
women to "significant health risks." The Court noted,
however, that the issue of whether the ban creates health risks was
contested in the lower courts. In the face of medical
uncertainty whether the Act would ever jeopardize women's health,
the Court said Congress had the discretion to pass legislation
forbidding PBA, even if some doctors disagree with the ban.
The Court also noted that alternatives to PBA exist.
The Court concluded by stating that a facial challenge to the
Act should not have been entertained in the first place. The
challengers' attack on the statute was more in the nature of an
"applied challenge," that is, a challenge based on particular
applications of the statute.
Justice Thomas (joined by Justice Scalia).
Justice Thomas authored a concurrence. He concluded that the
Act was properly upheld under the principles of Casey v.
Planned Parenthood, but that Casey and Roe
have no basis in the Constitution. Justice Thomas also noted
that the question of whether the Act was a permissible exercise of
Congress's power to regulate interstate commerce was not before the
Justice Ginsburg (joined by Justices Stevens, Souter, and
Breyer). Justice Ginsburg said the ban would fail under the
"close scrutiny" required by previous case law. She also said that
the equality of women depends on their right to have an
abortion. She insisted that the ban needs a health exception
because, without one, women would face health risks. She said
the ban does not save a fetus and undermines the fundamental rights
of women. She added that, in her view, allowing only an
"as-applied" challenge in circumstances such as these will
jeopardize women's health.