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November 10, 2006

Supreme Court Abortion Cases (Gonzales v Planned Parenthood, Gonzales v Carhart)

As a law geek scholar skeptical of media, I try to read original sources where possible, and I subscribe to a service of Cornell Law School that emails a summary of Supreme Court cases, along with a link to the full text of the opinion. It's interesting to see that the vast majority of what the Court does is dry, technical and not of much interest outside the immediate parties - or perhaps to specialized fields.

Obviously, the abortion cases are in a different category, and I wanted to share some info on them for those who wanted to dig a bit deeper. Cornell Law School is now sending out previews of the cases, which is below, followed by links to the transcript of the oral argument the Court heard on these cases the other day.

From the Cornell Law School preview:

FOURTEENTH AMENDMENT, PARTIAL-BIRTH ABORTION, HEALTH EXCEPTION, UNDUE BURDEN, UNCONSTITUTIONAL VAGUENESS, CONGRESSIONAL FACT-FINDING
The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The Supreme Court has held that "liberty" encompasses a woman's right to choose abortion. Although states may regulate abortion after the fetus has reached viability, they may only do so if their regulations provide an exception for procedures that are necessary to preserve the life or health of the mother. In its 2000 decision in Stenberg v. Carhart, the Court invalidated as unconstitutional a Nebraska ban on partial-birth abortions that lacked a health exception, based on district court evidence of the medical necessity of such a procedure. Congress subsequently determined that such a health exception was unnecessary, because the procedures used for partial-birth abortion, in Congress's view, are never necessary to preserve the health or life of the mother. Congress then enacted the Partial-Birth Abortion Ban Act of 2003.

On November 8 the Supreme Court will hear, separately, two cases on the same question: "Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face." The Court's decision will determine whether governmental interests in protecting potential life and prohibiting procedures that resemble infanticide outweigh a woman's constitutional right to choose an abortion without the government placing substantial obstacles in her path. Advocates on both sides of the abortion debate view a potential decision to uphold the Act as a significant first step to future restrictions on the availability of abortions.

Gonzales v. Planned Parenthood Federation of America, Inc. (05-1382) preview: http://www.law.cornell.edu/supct/cert/05-1382.html
2. Gonzales v. Carhart (05-380) preview: http://www.law.cornell.edu/supct/cert/05-380.html
Discussion of the dual cert. grants: http://www.law.cornell.edu/supct/cert/cert_abortion_cases.html 

The previews elaborate significantly on the main points of contention, and they contain links to the actual legislation, briefs of the parties, and previous cases (both other Supreme Court cases, as well as lower court opinions in these particular cases).

The Carhart preview provides the more general issues, and the Planned Parenthood preview below gets into more detail. From the Carhart preview (links in preview supplied by Cornell Law):

Carhart’s argument, with which the Nebraska District Court and Eighth Circuit agreed, is that any ban on an abortion procedure must have an exception to that ban for cases in which the health of the mother is at risk. Carhart, 413 F.3d at 793. This requirement derives from the Supreme Court’s 2000 decision in Stenberg v. Carhart, which struck down a Nebraska state ban on partial birth abortions. 530 U.S. 914 (2000). The Court in that case struck down the Nebraska ban because it did not provide an exception for cases in which the health of the mother was at risk and because “a State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Id. at 930. In this case, Carhart maintains that similar reasoning should control, as there are cases in which the banned procedures will prevent damage to the mother’s health. Carhart, 413 F.3d at 801–02.  

According to “substantial medical authority” offered by Carhart, the D&X and D&E procedures, as opposed to other methods of late-term abortion, reduce risk of injury to the uterus and cervix and reduce blood loss and the length of exposure to anesthesia. Id. at 802. Intact D&E is therefore the preferred option for women with heart problems, bleeding disorders, and several other medical conditions. Brief of Respondents at 20. All told, there are more than twenty five to thirty circumstances in which intact D&E is the safest second trimester abortion procedure. Id. at 20–21. Therefore, in cases in which these concerns are significant, banning these procedures can create health risks for the mother. Id.

The government’s position is that a health exception to the Ban is unnecessary because Congress found that “partial birth abortion is never medically indicated to preserve the health of the mother.” Brief for the Petitioner at 10. Since Congressional findings in this matter are more recent and more complete than the Court’s findings in Stenberg, the Court should not overrule those factual findings. Id. 

The preview for the Planned Parenthood lays out the competing issues in more detail:

Planned Parenthood argues that the Partial-Birth Abortion Ban Act’s lack of a health exception is unconstitutional under Stenberg because, contrary to the congressional findings, there is no consensus regarding the medical necessity of partial-birth abortion. Brief of Planned Parenthood Respondents at 3. The government argues that Stenberg only requires a health exception if an abortion regulation would create “significant health risks” for “a large fraction” of women. Brief for the Petitioners at 13. Further, the government argues that the Court should defer to Congress’s assessment that the Ban does not create significant health risks for women and thus does not require a health exception. Id. at 10.

Planned Parenthood also argues that the Ban imposes an undue burden on women seeking legal pre-viability second trimester abortions, rendering it unconstitutional under Casey. See Brief of Planned Parenthood Respondents at 33. The Ban imposes an undue burden because its definition of the banned “partial-birth abortion” procedure fails to indicate whether the law bans intact D&E, non-intact D&E, or both procedures, and therefore discourages doctors from performing all D&E procedures. Id. The government reads the Ban to provide specific “anatomical landmarks” that limit the prohibition to intact D&E procedures. Brief for the Petitioners at 31. In addition, the Ban only attaches liability to doctors who intentionally deliver the fetus past those “landmarks” in order to terminate the fetus. Id. Thus, the prohibited procedure is not so vague as to deter doctors from performing similar procedures. Id.

Finally, Planned Parenthood argues that the Ban is unconstitutionally vague because it fails to clearly differentiate between prohibited and permitted procedures. Reasoning that the Ban therefore does not allow doctors to avoid criminal liability by only performing the permitted D&E procedure, Planned Parenthood argues that the entire Ban must be enjoined. Brief of Planned Parenthood Respondents at 47. The government responds that Ban’s definition of the prohibited procedure “contains no ambiguous terms or phrases” and thus is not unconstitutionally vague. Brief for the Petitioners at 11. The government suggests that if the Court nevertheless finds the Ban unconstitutional in some respect, the Court should issue an injunction to address that specific aspect, and leave the rest of the Ban intact. Id. at 40.

I don't know about you, but that's much more than I've read elsewhere and certainly a better job than TV news 'analysis.'

While most of the focus has been on the abortion issue, an important matter for the Court is deference to Congressional findings of fact (or 'fact'). Many Court watchers know that the importance these issues can take. For example, in an early lethal injection case, condemned inmates challenged the procedure under laws requiring the FDA to certify all drugs as safe and effective. The 'cocktail' of three lethal injection drugs had never been tested on people, so there was a legitimate question about whether it would work in a way that complied with the 8th Amendment requirements that the execution not involve torture or a lingering death. Rather than meet the issue squarely, the Court decided the case on ground about the ability of the Court to compel an administrative agency to do a specific duty. (The Court said it didn't have that authority under the seperation of powers, so the challenges to lethal injection are only now starting to surface in other ways.)

In this case, the fact-finding issue is described in the Planned Parenthood preview:

If the Court holds in favor of Planned Parenthood on the issue of a health exception, it will hold that the Ban must contain an exception to allow the banned procedure in cases where it is necessary to protect a woman’s health. Such a holding would directly conflict with Congress’s explicit finding that the procedure is “never medically necessary,” and would indicate that, at least in some instances, courts may independently evaluate the congressional evidence and establish facts that conflict with congressionally-found facts. Such a result would implicate the balance of power between the legislative and judicial branches of government.

Here, the Court has a number of interesting arguments to consider: 

The government asserts that the Ninth Circuit should have deferred to Congress’s finding on medical necessity, and argues that a court should not “replace Congress’s factual predictions with [its] own.” Brief for the Petitioners at 21 (quoting Turner II, 520 U.S. at 211). In response, Planned Parenthood argues that Supreme Court precedent expresses more than one level of deference for reviewing congressional findings. In this case, the findings do not require the highest level of deference because they are “false” conclusions to draw from the congressional testimony, which means they “are not reasonable and merit no deference.” Brief of Planned Parenthood Respondents at 27. Planned Parenthood also urges that there is a heightened need for independent judicial review of this Ban because it implicates the constitutionally-protected right to abortion, and because Congress intentionally designed the Ban to “circumvent” the Supreme Court’s ruling in Stenberg. Id. at 25–26. The government disputes that Congress attempted to circumvent Stenberg, and contends that Congress merely collected additional evidence to supplement the record the Court had used to decide Stenberg. Brief for the Petitioner at 26–27, Gonzales v. Carhart, No.05-380 (2006). This additional evidence substantially supports Congress’s subsequent finding that partial-birth abortion is never medically necessary, and is therefore entitled to judicial deference. Id. The government reasons that “an earlier judicial finding of fact [in Stenberg] does not deprive a later congressional finding of deference.” Id. at 28.

In addition to the previews, anyone who wants even more reading can pull up transcripts of the oral arguments. The Supreme Court refuses to allow television into the chambers for argument, but they do allow audio recordings, and they do transcribe all the oral arguments so they can be freely made available from the Court's website. The transcript for Carhart is here, and the one for Planned Parenthood is here (both in .pdf form). As they tend to be narrowly focused discussion, the preview above (especially links to the briefs) will be quite helpful in getting the most from the transcript.

For anyone who is looking for even more, the Oyez Project (formerly of Nothwestern University) has an impressive collection of multimedia about the Supreme Court, including audio files of many arguments. The latest abortion case they have posted is Ayotte v Planed Parenthood (argued 2005, decided 2006) - click here and see the 'audio' link on the left for mp3 and other audio options. You can also use the search bar on top to type in 'abortion' to see the other multimedia resources, which include audio for the Stenberg case that's an important precedent here (again, see the 'audio' link on the left).

Finally, Amazon has May It Please the Court: Arguments on Abortion (book and 2 cassettes). It's a 1995 effort, but has audio of oral arguments for many of the classic cases. And, at the moment it's $1.11 plus shipping for a used copy.

PS  - you can see quite quickly that Planned Parenthood is at the forefront in terms of litigating to protect women's right to choice, as well as all the other work they do in the area of reproductive freedom. Please consider making a donation to them.

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