Six years ago, in Stenberg v. Carhart, the U.S. Supreme Court ruled that Nebraska's law against partial-birth abortion (PBA) was unconstitutional. In effect this invalidated similar laws in 29 other states. But on November 8 the Court takes a second look at partial-birth abortion, hearing oral argument in two cases on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. Lower courts have prevented that ban from taking effect.
How are these cases different from the partial-birth abortion case of 2000?
- The new cases deal with a federal law passed by Congress, not a state law as in the Stenberg v. Carhart case of 2000.
- The federal law defines the banned procedure differently and more precisely, responding to what the Supreme Court saw as a drafting flaw in the Nebraska law.
- After years of hearings, Congress concluded that PBA is never "medically necessary" to preserve a woman's health, and it included this and other factual findings in its ban. Under a longstanding practice of the federal courts, such factual findings are entitled to judicial deference.
Three federal appellate courts reviewed the federal partial-birth abortion ban: the United States Courts of Appeals for the Second, Eighth and Ninth Circuit, which sit in New York, St. Louis, and San Francisco, respectively.
In all three cases, the courts invalidated the federal statute because it lacks a general "health" exception. One court, the Ninth Circuit, also concluded that the statute is constitutionally defective in the way it is drafted (too broadly and too vaguely, in the court's view, to ban only partial-birth abortion or to give sufficient notice of what is banned).
The Supreme Court has agreed to review the decisions of the Eighth and Ninth Circuits. The Second Circuit case has yet to work its way up to this level.
What is the USCCB's legal position on the PBA ban? In May 2006 the Conference, joined by a number of other religious organizations, filed a friend-of-the-court brief in Gonzales v. Carhart, the first of the two PBA cases before the Court: www.usccb.org/ogc/AlbertoRGonzalesAttorneyGeneralvLeroyCarhartetal.pdf.
In the USCCB's view, the Court's earlier decision in Stenberg v. Carhart does not control the outcome of this case for the reasons noted above. Indeed, because this case involves a living child substantially outside his or her mother's body, the federal PBA ban is outside the scope of the Court's abortion precedents.
Moreover, even if those precedents are found to be applicable, the federal ban should be upheld. In 1992, in Planned Parenthood v. Casey, the Supreme Court said that legislatures should be given greater latitude to regulate abortion than had been recognized in many previous court decisions. Invalidating the federal partial-birth abortion ban would be something of a throwback to this earlier and now discredited era, when courts rejected even very modest and reasonable abortion regulations.
Finally, the USCCB urges the Court to reexamine its abortion jurisprudence, for several reasons:
- The ongoing supervisory role that the Supreme Court has assumed in abortion disputes continues to be a source of division and unpredictability for the other branches of government.
- A large number of respected scholars and legal commentators on both sides of the abortion question view Roe v. Wade (1973) as indefensible on its original terms. The wide-ranging and continuing search by abortion proponents, and even individual justices, for an alternative legal justification for that decision is itself a sign that abortion policy is best suited to the legislative branch, not a matter of constitutional interpretation.
- Roe impedes an essential function of government by forbidding it to restrain private killing. The result has been a catastrophic loss of innocent human life.
- The factual assumptions underlying Roe are now disputed with evidence not available at the time Roe was decided. For example, the assumption in Roe that abortion is safer than childbirth has come under serious challenge, and there is a significant and growing literature linking abortion with serious short- and long-term physical and mental health risks.
At another level, these cases involve more than partial-birth abortion. They raise questions about the extent to which legislatures may regulate abortion at all, and are expected to have some spill-over effect on other abortion-related issues. For example:
- When it banned partial-birth abortion, Congress made an explicit finding that the procedure is never necessary to preserve the mother's health. If the Court concludes that Congress's judgment is not entitled to the high degree of deference that courts ordinarily accord to Acts of Congress, this may make it more difficult to defend other abortion laws that depend on legislative judgments, such as parental notice and informed consent laws.
- Similarly, if the Court concluded that the federal partial-birth abortion ban fails to pass constitutional muster because it lacks a general health exception, this could have adverse consequences for the ability of legislatures to enact generally applicable abortion laws without very significant loopholes.
- On the other hand, a decision upholding the federal law would mark the first time since Roe v. Wade in 1973 that the Supreme Court has allowed legislators to forbid any method of abortion. It could also signal new opportunities for legislatures to assess the real impact of abortion on women and their unborn children, and to frame laws accordingly to improve protection for human life.