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Gonzales v. Carhart (2007)

In Depth


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 Court.

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-

(A) 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 fetus; and

(B) performs 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 pregnancy itself."

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.

The Concurrence

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 Court.

The Dissent

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.

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