Tuesday, June 29, 2010

The Abortion Cases Part Twelve

Nebraska's Dr. Leroy Carhart

A Nebraska law criminalizing late term abortions was the focus of the Supreme Court's decision in Stenberg v. Carhart. The Court's majority consisted of five Associate Justices Stephen Breyer, who wrote the opinion and was joined by Associate Justices Stevens, O'Connor, Souter, and Ginsburg. Justice Stevens wrote a concurring opinion, in which Justice Ginsburg joined. Justice O’Connor filed a concurring opinion. Justice Ginsburg filed a concurring opinion, in which Justice Stevens joined.

There were four in dissent, Chief Justice Rehnquist, and Associate Justices Scalia, Thomas, and Kennedy.

Breyer's opening volley lays to rest any notion that the landmark decision of Roe v. Wade would be overturned. He said: 

Associate Justice Stephen Breyer
"We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade; Planned Parenthood of Southeastern Pa. v. Casey. We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case."
The Court considered three established principles in making that application. "First, before 'viability … the woman has a right to choose to terminate her pregnancy.'”

 "Second,'“a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability' is unconstitutional. An “undue burden is … shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

"Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

The Nebraska statute §28—328(1) provided “No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the 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.”

Partial Birth Abortion was defined as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” §28—326(9).

The law further defines “partially delivers vaginally a living unborn child before killing the unborn child” to mean the “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.”

In Nebraska, a person found guilty of violating this law would be guilty of a felony "carrying a prison term of up to 20 years, and a fine of up to $25,000. §§28—328(2), 28—105. It also provides for the automatic revocation of a doctor’s license to practice medicine in Nebraska. §28—328(4)."

The Court found Nebraska's law unconstitutional, affirming the decision of the trial court and the Eighth Circuit Court of Appeals. The original action was brought by Dr. Leroy Carhart seeking declaratory relief.

Nebraska law prohibited one method of abortion. For clarity the Court discussed several different abortion method. About 90% of all abortions occur in the first trimester of pregnancy, before 12 weeks of gestational age, using a method called vacuum aspiration. The procedure’s mortality rates for first trimester abortion are, for example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are also low."

About 10% of all abortions take place in the second trimester, gestational age weeks 12 - 24. In the 1970's second trimester abortions tended to employ the saline injection method, as discussed in Danforth v. Planned Parenthood. Since then "the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E)."

D&E “refers generically to transcervical procedures performed at 13 weeks gestation or later.” American Medical Association, Report of Board of Trustees on Late-Term Abortion.

“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.”

After 15 weeks: "Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”

After 20 weeks: “Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation.”

There are variations in D&E operative strategy; compare ibid. with W. Hern, Abortion Practice 146—156 (1984), and Medical and Surgical Abortion 133—135. However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.

There were two fatal flaws in the Nebraska law. First, the criminal statute did not provide any exception for the health of the mother. Second, the act imposed an undue burden on a woman's ability to choose a D&E abortion, thus unduly burdening her right to choose an abortion.

Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. Roe v. Wade's "[h]olding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

Justice O'Connor probably could not believe her ears when counsel for Nebraska said that the late term "procedure will not, in some circumstances, be “necessary to preserve the life or health of the mother" She said "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional" in her view.  My bet is that a lady as mature as Justice O'Connor can recall from personal experience a number of women whose deaths were attributed to maternal mortality.  I know I can, and I am a little younger than this distinguished jurist.

Associate Justice Ruthe Bader Ginsberg

Associate Justice Ginsburg quoting the Chief Judge of the Seventh Circuit Court of Appeals, Richard Posner, in the case of Hope Clinic v. Ryan said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.”

Chief Judge Richard Posner of the Seventh Circuit

Chief Justice Rehnquist deferred to the analysis of Justices Kennedy and Thomas in their dissents.

Justice Scalia, who as we recall cannot find the concept of Liberty in the Constitution, attacked the Court's opinion as "policy-judgment-couched-as-law."

Justices Kennedy and Thomas dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Rehnquist, Scalia, Kennedy, and Thomas would give great deference to Nebraska. They find Justice O'Connor's view that the statute would pass constitutional muster with an appropriate exception for the health of the mother disingenuous.

When the Rehnquist branch of the Court write the opinion they are seen as substituting policy for judgment couched as law. When they are in the minority they hurl that barb at the majority. Abortion remains a contentious issue on the Court.

The Court seldom airs its internal conflicts as openly as it does in these cases.

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