Supreme Court Preview: Abortion and the "Health Exception"

by Pamela Harris, Of Counsel, O'Melveny & Myers LLP & Dawn Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana Law School

Gonzales v. Carhart, No. 05-380
Gonzales v. Planned Parenthood, No. 05-1382

In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court struck down Nebraska’s ban on what the law called “partial-birth abortions.” The Court held that the law was unconstitutional on two grounds: first, it failed to include a “health exception” for circumstances in which the banned method would be the safest form of abortion for a woman, 530 U.S. at 930-38; and second, the definition of the banned procedure was so broad that it would encompass–and prohibit–the vast majority of surgical abortions performed in the second trimester, which begins at 12 weeks of pregnancy, long before fetal viability, id. at 938-40.

In 2003, Congress responded defiantly by passing the Partial-Birth Abortion Ban Act of 2003 (“Federal Abortion Ban”), a federal version of essentially the same law the Court struck down. Congress deliberately omitted the health exception mandated by Stenberg–and substituted “legislative findings” that, contrary to the Court’s conclusion in Stenberg, the banned procedure is “never necessary to preserve the health of a woman.”

The fate of the Federal Abortion Ban under Stenberg ought to be an easy question–and indeed, every federal court to consider the law has found it unconstitutional. In Stenberg, the Court clarified that a health exception is required whenever a “significant body of medical opinion” or “substantial medical authority” indicates that a banned abortion procedure “may bring with it greater safety for some patients.” 530 U.S. at 937-38. Applying that standard, three federal district courts (affirmed by three federal appellate courts) concluded–as the Supreme Court did in Stenberg–that there is in fact “substantial medical authority” showing that an outright ban on the procedure in question would endanger some women’s health by depriving them of access to the method of abortion safest for them. The courts unanimously held that Congress’s finding to the contrary simply could not be sustained.

So why, then, isn’t this an open-and-shut case now that it is back before the Supreme Court? Because Stenberg was a 5-4 decision, and Justice O’Connor, who was in the majority, has been replaced by Justice Alito. The question now is how a controlling block of five Justices who either dissented in Stenberg (like Justice Kennedy) or likely would have dissented had they been on the Court (like Justice Alito and Chief Justice Roberts) will treat that precedent and Congress’s effort to circumvent it. On the one hand, the Court may have an institutional interest in standing by its prior decision and protecting its prerogatives against what it likely will see as encroachment by Congress. Justice Kennedy, in particular, has been quick to invalidate what he views as congressional “overrides” of Supreme Court decisions. On the other hand, though, is the fact that the Stenberg dissenters–again, especially Justice Kennedy–were particularly fervent in their belief that the Nebraska law should stand, regardless of what they termed “marginal” costs to women’s physical safety. 530 U.S. at 967 (Kennedy, J., dissenting). With the substitution of Justice Alito for Justice O’Connor, we may well have five Justices prepared to abandon Stenberg–either behind the guise of deference to Congress’ “findings,” or by overruling Stenberg outright.

What would it mean for the Court to overrule Stenberg? As an increasingly conservative Court shifted from Roe’s “fundamental rights” analysis to Casey’s more malleable “undue burden” test, one bright-line rule remained the same: a pregnant woman’s safety may not be subordinated, by any degree, to government opposition to abortion. A holding in this case that the government may deny women seeking legal abortions access to the surgical procedure safest for them, and instead impose on women unnecessary health risks, would destabilize decades of “health exception” precedent and call into question the critical predicate of the Roe-Casey-Stenberg line of cases: that women’s health is so important that it outweighs any governmental interest in restricting abortion. More generally, validation of Congress’ intervention here may open the door to future efforts to circumvent constitutional rights (reproductive and otherwise) with fraudulent findings of “fact”–and increase the likelihood that, to the extent the Court overrules or undermines Roe, the fate of reproductive rights will be determined not by the 50 states for themselves, but by Congress for everyone.

Written By:devil's advocate On September 25, 2006 06:43 PM

What is the basis for the argument that Congress's "legislative findings" are "fraudulent"? The only discernible basis for this in the post is that three district courts disagreed, on the record before them, and all survived appeal. Is there something I missed?

I don't think that the federal government should be in the business of regulating abortion, and I hope that the opponents of the federal law can do better than the argument-by-epithet reflected in this post.

The part of the post that I find enlightening, however, is the one predicting how the court will likely rule. Remove the sarcasm and the gratuitous snark, and it's rather interesting. As the abortion lobby struggles to preserve the victories it has won in prior years at the Supreme Court, Justices Alito and Roberts will be challenged to explain their views of stare decisis, and the abortion lobby will have to explain why a 5-4 decision from 2000 is sacred (other than because it deals with abortion).

Given that Justice Kennedy is not above pandering to the elites by emphatically overruling precedent (Lawrence v. Texas), or hiding from his critics by offering flimsy "changed circumstances" rationales (Roper v. Simmons), I wonder what sort of an argument could possibly persuade him that Stenberg v. Carhart must stand. Justice Stevens has already laid down a marker in a Booker case, arguing that a 1998 case, though wrongly decided in his opinion, should stand for stare decisis reasons, but there are lots of reasons for distinguishing that case.

This promises to be an interesting case. After Ayotte and the 2 new members of the court, the result is anyone's guess.

Written By:m On September 25, 2006 08:05 PM

What is the basis for the argument that Congress's "legislative findings" are "fraudulent"? The only discernible basis for this in the post is that three district courts disagreed, on the record before them, and all survived appeal. Is there something I missed?

The Congressional finding is disingenuous at best. If it were truly the case that the kind of procedure banned by the federal law was never necessary to protect the health of the woman, then Congress could simply pass a law which complied with Stenberg and rest assured that their law was 1) constitutional and 2) would ban 100% of the abortions they sought to ban. Or to think of it another way, if Congress is right that there is no case where this proceedure is necessary to protect the health of the woman, than writing a women's health exception into the law would have the same effect as writing a unicorn exception into the law.

The fact that Congress felt it necessary to ignore Stenberg reveals that they were lying.

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