The Court revisits Partial Birth Abortion
In Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America the Court again tackles the gruesome topic of Partial Birth Abortion. This time a federal statute, the Partial-Birth Abortion Ban Act of 2003.
This Act, 18 U.S.C. § 1531, differs from the Nebraska statute in Stenberg v. Carhart. First the Act does not regulate the most common method of abortion used during the first trimester of pregnancy. Second the Act does not apply to a partial-birth abortion that is 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.
Congress made findings that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
Attorney General Alberto Gonzalez
In the principal case, Gonzales v. Carhart, Carhart made a facial challenge to the constitutionality of the Act. Carhart's claimed the Act was void for vagueness, or in the alternative, it was constitutionally infirm because it placed an undue burden based on a woman's right to abortion based on the Act's overbreadth or lack of health exception.
Associate Justice Anthony Kennedy wrote the Court's 5 - 4 opinion. He was joined by Chief Justice John Roberts, and Associate Justices Scalia, Thomas, and Alito. Associate Justice Clarence Thomas wrote a separate concurring opinion joined by Justice Scalia.
Associate Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Associate Justices Stevens, Souter, and Breyer.
Associate Justice Anthony Kennedy
For the majority Kennedy begins by distinguishing the case of Planned Parenthood v. Casey. Kennedy writes "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."
Kennedy concluded that the Act in this case was not void for vagueness and did not impose an undue burden from any sense of overbreadth. The facial challenge to the Act failed.
It is important to note that the Act applies without regard to whether the fetus is pre or post viable. "The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. We do not understand this point to be contested by the parties.”
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). 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.
Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” §1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark.
Finally the Court discusses mens rea, "Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks. §1531(b)(1)(A). 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].” If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind."
Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution. He deftly notes that the question of whether abortion is permissible under the Commerce Clause is not before the Court. The Act makes specific reference to the Commerce Clause of the Constitution.
§1531(a) 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. This subsection does not apply to a partial-birth abortion that is 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.
We must be alert to attempts to derail the decision of Roe v. Wade by those who argue that no fundamental right to Liberty exists and thus there would be no right to privacy.
Associate Justice Ginsburg protests the short shrift given stare decisis in the Court's opinion. She wrote:
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.
Justice Ginsburg's point is well taken. Here is the applicable part of the Act.
§1531(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was 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 exception does not apply to the woman's health.
Recall that the Partial Birth Abortion cases apply to only a narrow percentage of all abortive procedures. It is readily apparent that neither side is giving much credence to the other side when it comes to fashioning a consistent rule of law guiding late term abortions. However, the majority, minus Justice Thomas, affirmed the essential holding of Roe in this case.
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