(This post is scheduled to be published in the summer 2007 volume of the Journal of Clinical Ethics as part of its regular column "Legal Trends in Bioethics.")
On April 18, 2007, the U.S. Supreme Court handed down its ruling in the combined cases of Gonzales v. Carhart and Gonzales v. Planned Parenthood. The Court overturned two Circuit court decisions and found the Partial-Birth Abortion Ban Act of 2003 constitutional. The federal Act in question is now the law of the land. No state can allow partial-birth abortions unless to save the life of the woman having the procedure.
The Federal Act. The Partial-Birth Abortion Ban Act of 2003 is very specific regarding what type of abortion procedure is prohibited. Not all D&Es are prohibited, only "intact D&Es", also known as "intact dilation and extraction," "D&X" or "intact D&X." The Act is also very specific about the criteria for violations to exist.
The alive fetus must have been delivered to the point where its entire head is outside the body of the mother or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the mother before it is killed by an overt act of the healthcare professional doing the abortion. Any procedure where the fetus has not been delivered to these anatomical landmarks is not prohibited. Note, since the fetus must be alive when it reaches the indicated anatomical landmarks, an intact D&E where the fetus is dead before it reaches these landmarks is not prohibited. Further, since the healthcare provider must have the intention of performing an intact D&E, there is no liability if the procedure accidentally became an intact D&E. The intention issue is a difficult one because some procedures are typically followed right from the beginning of the procedure only if an "intact" D&E is intended. The Act's language and the Court's interpretation of the Act seem to define an "intact" D&E as one that has reached the specified landmarks, however, this leaves open the possibility that there is such a thing as what might be technically an "intact" D&E that is not illegal because the required anatomical benchmarks have not been reached. Finally, it is important to note that the Act specifically excludes the abortion recipient of any potential liability under the Act.
The Court's Majority Opinion. The federal Partial-Birth Abortion Ban Act of 2003 is constitutional. The decision was 5-4. Kennedy wrote the opinion joined by Roberts, Scalia, Thomas and Alito. The majority opinion found that Act is not void for vagueness, not invalid on its face, and does not impose an undue burden due to overbreadth. This is the first time since Roe v. Wade that the Court has upheld a restriction on abortion that does not include a general exception for the health of the mother. In past ruling all restrictions on abortion had to leave the healthcare provider the option of performing the prohibited procedure if there was any health concern at all that justified using that procedure rather than another. This time the Court found it sufficient for the Act to include an exception for the life of the mother, but no general health exception. No less significant health consideration than saving the life of the woman can justify using the intact D&E procedure. The major significance of this ruling is the deference it shows legislative action. The opinion states:
We assume the following principles for the purposes of this opinion. Before viability, a State may not prohibit any women from making the ultimate decision to terminate her pregnancy. It also may not impose upon this right an undue burden, which exists if a regulations' purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. On the other hand, regulations 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.
. . .
The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.
. . .
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, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
. . .
Considerations of marginal safety, including balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.
(Citations and internal quotation marks omitted).
In addition to a clear deference to legislative action, the majority opinion also shows a lack of deference to individual healthcare providers and their ability to judge what is in the best interest of patients.
The Court's Dissenting Opinion. Ginsburg wrote a dissenting opinion in which Stevens, Souter, and Breyer joined. Those dissenting would have found the Act unconstitutional. The opinion criticizes the majority for relying on "rational grounds" for upholding State action when in earlier cases the Court has used the standard of "heightened scrutiny." They also object to the majority's deviating from the Casey ruling that "state regulation of access to abortion procedures, even after viability, must protect the health of the woman." (internal quotation marks omitted). The dissenters argue that the majority's deference to the legislature in overriding constitutional rights deteriorates the gains U.S. society has made in recognizing women as protected by that Constitution and as individuals with the full rights of citizenship. Ginsburg writes:
There was a time, not so long ago, when women were regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution. Those views, this Court made clear in Casey, are no longer consistent with our understanding of the family, the individual, or the Constitution. Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential, the Court recognized, is intimately connected to their ability to control their reproductive lives. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life course, and thus to enjoy equal citizenship stature.
In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman's health.
(Citations and internal quotation marks omitted).
The As-Applied Challenge. The majority opinion states the Act would be unconstitutional if it exposed women to significant health risks. The Court did not find a prohibition against intact D&Es created such a risk, but it did acknowledge that "preenforcement, as-applied challenges to the Act could be filed as a proper way to protect the health of women should there be "discrete and well defined instances a particular condition has or is likely to occur" where use of intact D&E must be used to protect the health of the mother. While the majority opinion allows for such challenges, it is unclear what such a lawsuit would look like. The dissent asks, "Surely the Court cannot mean that no suit may be brought until a woman's health is immediately jeopardized by the ban on intact D&E." I'm sure the answer will be forthcoming soon since lawsuits challenging the Act on as-applied basis are undoubtedly already being planned.