Supreme Court Upholds Partial Birth Abortion Ban

Update: See More Webloggin Analysis: SCOTUS Delivers Pro-Life Victory - Is Roe v. Wade Next?

The United States Supreme Court upheld the validity of the Partial-Birth Abortion Ban Act of 2003 in a 5-4 decision. The ruling is a blow to abortion activists such as petitioner Planned Parenthood who claimed that the ban that President Bush signed into law was a violation of a woman’s right to an abortion. The Supreme court disagreed in a decision that was delivered by Justice Kennedy. (text of the decision provided on ScotusBlog)

The decision discussed the abortion procedures at length and considered how the Partial Birth abortion act differed from other laws that were deemed unconstitutional in other court rulings. In doing so the court also considered the government’s interest in protecting the rights of an unborn child. It is in this light that the abortion rights activists get the largest strike against them. [All emphasis in the text of the court decision are mine]

The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not find support from all those who join the instant opinion. See id., at 979?1002 (SCALIA, J., joined by THOMAS, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion “that the government has a legitimate and substantial interest in preserving and promoting fetal life” would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.

Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary:

“It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State?s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman?s effective right to elect the procedure. Second is a confirmation of the State?s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman?s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.? 505 U. S., at 846 (opinion of the Court).

Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.

The key parts to pay attention to in the decision is the question of the viability of the child when the mother’s life is not at risk. Note that we are not talking long term viability here either. There are a couple of different procedures involving partial birth abortion. The late term procedures all involve killing a viable fetus, even if it can live only for a short period of time. The cause of death is usually the result of crushing the skull or tearing the unborn child up into small parts for piecemeal removal.

Thus the court addresses viability in the context of the state’s interest to protect such a child.

We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden,which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman?s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar.

With respect to the most common procedure called a D&E (dilation and extraction) the court found that it does not pose an undue and substantial obstacle to a woman seeking an abortion. This stems from the fact that the D&E in question involves the delivery of an intact “living” fetus. This court draws on Casey in making the determination.

Because D&E is the most common second trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D&E. We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face

The court also concluded that the specificity of the act helps uphold their decision to deem it Constitutional.

Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered “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.” §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’” where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother - the prohibitions of the Act do not apply.

Planned Parenthood seemed to argue that the Act was unconstitutional because it punished doctors who performed the ban procedure in all cases. But the 2003 Act only deemed it illegal when the killing was done deliberately and intentionally beyond the anatomical landmarks mentioned above.

If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. If either intent is absent, no crime has occurred.

So don’t believe the hype when you hear that the 2003 Ban could make all abortions illegal regardless of intent. The respondents (Planned Parenthood and all others bringing the case against the ban) argued specifically that the language of the act was too vague. The Supreme Court disagreed in quoting the decision of Greyned v. City of Rockford.

The Act provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.”

In determining that the Act does not impose an undue burden the court rejected the claims of the respondents.

As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. “[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” United States v. Raines, 362 U. S. 17, 21 (1960) For this reason, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.”

The court ultimately decided that the respondents did not make their case and reversed the Ninth Circuit court of appeals.

Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman?s right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.

Update: The ruling is 73 pages long and this is my cursory review. I have read elsewhere that the federal ban doesn’t provide an exception for the health of the mother but I don’t believe this to be true because the court addressed this on page 44 of the decision.

The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411?412 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman’s life because the Act already contains a life exception. 18 U. S. C. §1531(a) (2000 ed., Supp. IV).

Others Wizbang, La Shawn Barber, The Sandbox, Hot Air, Hyscience, Right Voices, Captain’s Quarters, Outside the Beltway, Sister Toldjah, Power Line, Instapundit, Jammie Wearing Fool, AJ Strata, Texas Rainmaker