Summary of Partial-Birth Ruling [Ed Whelan]
BENCH MEMOS BLOG
Here's my selective summary of the ruling.
Justice Kennedy's majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito, states:
1. We apply the balance struck in Planned Parenthood v. Casey. (Slip op. at 14-16.)
2. The federal Partial-Birth Abortion Ban Act of 2003 is not void for vagueness, does not impose an undue burden, and is not facially invalid.
a. The Act is not unconstitutionally vague. (Slip op. at 18-20.) It provides doctors of ordinary intelligence a reasonable opportunity to know what is prohibited, and its intent requirement further alleviates any vagueness concerns and prevents against arbitrary enforcement.
b. The Act does not impose an undue burden. (Slip op. at 20-26.) Its reach is limited to physicians who carry out the intact D&E after intending at the outset both to deliver the fetus until its head lodges in the cervix and to pierce or crush the fetal skull. It does not apply to D&Es in which the doctor intends from the outset to remove the fetus in pieces. The Act differs in this respect from the Nebraska statute struck down in Stenberg v. Carhart. The identification of specific anatomical landmarks and the inclusion of an overt-act requirement also distinguish the Act from the Nebraska statute. Also, the canon of constitutional avoidance, which "has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion," also calls for us to give a statute a reasonable construction that would save it from unconstitutionality.
c. The Act does not on its face impose a substantial obstacle to late-term, but pre-viability, abortions. (Slip op. at 26-37.) The Act expresses respect for the dignity of human life and advances the interest in protecting the integrity of the medical profession. These are legitimate objectives under Casey. Casey's requirement of a health exception cannot be tantamount to allowing a doctor to choose the abortion method he prefers. "Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others."
The Act's ban on abortions that involve partial delivery of a living fetus furthers the government's legitimate objectives. The government has an interest in countering the likelihood that some doctors may prefer not to disclose precise details of intact D&E and may thereby cause greater grief to the "mother who comes to regret her choice to abort."
Under precedents that we assume to be controlling, the Act would be unconstitutional if it subjected women to significant health risks. There is documented medical disagreement on this question. In the face of this uncertainty and given the availability of other abortion procedures that are considered to be safe alternatives, the Court's precedents instruct that the Act survives a facial attack.
3. These facial attacks should not have been entertained in the first instance. The proper means to consider exceptions is by as-applied challenge. (Slip op. at 37-38.)
On initial read, this opinion strikes me as a significant victory. In particular, it appears that the Court is disinclined to continue to have special ad hoc rules that uniquely favor those who challenge abortion regulations.
A Narrow, Important Decision [Richard Garnett]
The Supreme Court's decision upholding the federal ban on partial-birth abortion is a narrow, but important one. Justice Kennedy's opinion for the majority does not change the Court's basic position with respect to abortion, but it does make clear that the Court's precedents permit reasonable, careful regulations of abortion in order to promote the state's valid interest in protecting what Justice Kennedy called the government's '"interest in respect for life."
The Justices distinguished, but did not overrule, their 2000 decision, Stenberg v. Carhart, which struck down Nebraska's differently worded partial-birth-abortion ban. Unlike the earlier decision, today's ruling respects the views of the overwhelming number of Americans — pro-life and pro-choice alike — who concluded that partial-birth-abortion is a procedure that a decent and humane society need not permit. In this sense, the decision is consistent with the view, expressed by Chief Justice Roberts during his confirmation hearings, that federal judges should be restrained, and not take it on themselves to remove controversial debates from pubic discourse.
Summary of Partial-Birth Ruling: Thomas's Concurrence [Ed Whelan]
In a one-paragraph concurrence (joined by Justice Scalia), Justice Thomas makes two points: (1) The Court's abortion jurisprudence has no basis in the Constitution. (2) The question whether the Act is a permissible exercise of Congress's Commerce Clause power was not before the Court.
On the broader Roe/Casey question, I would not read anything into the fact that the Chief Justice and Justice Alito do not join this concurrence, as the majority opinion was carefully written on the assumption that the Casey framework applies. On the Commerce Clause question, the Act's jurisdictional hook would suffice, under existing precedents, to establish Congress's power. (Of course, Thomas or Scalia might reject, and decline to apply, those precedents.)
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