Wednesday, April 18, 2007

Supreme Court Partial Birth Abortion Ruling

Today the Supreme Court upheld, by a 5-4 vote, the federal partial birth abortion ban. (Opinion here.) Here are a few highlights:

1) Justice Kennedy, who dissented from the Court's 2000 ruling invalidating the Nebraska partial birth abortion ban, writes the majority opinion, purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart.

2) The Court does not defer to the findings of Congress, which it acknowledges are factually inaccurate, about the medical necessity of the procedure. (Personal plug: Kennedy's opinion accepts the argument on this point of an amicus brief by a few law profs, including yours truly.)

3) The distinction on which Kennedy principally relies -- the greater specificity of the federal statute -- works for overbreadth and vagueness, but it's not clear that it should make a difference on the core issue: whether a government (state or federal) can ban what many doctors think is the safest way to perform a medical procedure. On that point, Justice Kennedy simply says that where there is medical disagreement, there is no constitutional obstacle to reasonable governmental regulation. This point seems impossible to square with Carhart.

4) Throughout the majority opinion, Justice Kennedy assumes the validity of Planned Parenthood v. Casey, ostensibly because Justices Scalia and Thomas, who dissented in Casey, are joining him. But the assumption also allows CJ Roberts and Justice Alito to remain in the closet about whether they would vote to overrule Roe and Casey if faced with that question directly. They do not join the Thomas/Scalia concurrence reiterating disagreement with Casey.

5) About 2 pages of the slip opinion explain that some women come to regret having abortions, and that there will be fewer such women if they know what an intact D & E (i.e., "partial birth abortion") involves. This is a strange passage because it seems like it would support a requirement of disclosure of a method of abortion, rather than its prohibition.

6) The Court leaves open the possibility of an as-applied challenge to the Act by a woman who really needs an intact D & E, although does not explain how that challenge could possibly be resolved in time to get a ruling before the emergency has passed. The Court notes that she can get the procedure without a court order under the law's life exception, but there is no health exception.


heathu said...

Could the lower court's decision been upheld if the appellants argued that Congress had no power to ban partial birth abortion under the commerce clause? Thomas notes that no one argued it, but the fact he noted it made me wonder if he would have found Congress's ban unconstitutional on those grounds. Then five justices would have found the ban unconstitutional, the four dissenters for the reasons in the dissent, and Thomas writing separately.

Sobek said...

"...although does not explain how that challenge could possibly be resolved in time to get a ruling before the emergency has passed."

Certainly you can't get a prospective ruling, but (a) nothing about the Act purports to punish the woman (indeed, she is expressly protected from liability), and (b) if a doctor were to sit in jail pending resolution of the facial challenge, he wouldn't be the first person deprived of liberty pending an appeal, and that circumstance might actually contribute to the Court striking down the statute.

But I doubt we'll see another challenge for another reason. If a doctor decides the woman's health is at risk, there's simply no reason for him to have to use intact D&E rather than any of the numerous procedures which Kennedy specifically indicated were not covered by the ban (D&E, hysterotomy, hysterectomy, or killing the baby by injecting poison into the baby, the placenta, the cord, or the fluid). Given that a doctor has all of these options available in the event of an emergency, why would he choose the one he knows might land him in jail?

Michael C. Dorf said...

In response to heathu:
If the commerce clause issue had been raised, J Thomas would have had to then decide whether to vote on it only "provisionally," but still to vote to sustain the Act. This choice between aggregating by outcomes and aggregating by issues is a very interesting question to which there is no definitive answer.

In response to Sobek, the assumption of the hypothetical as-applied challenge is that there would be some unusual circumstances in which ONLY an intact D&E would avoid the medical risk, or that the intact D&E was much safer than the other options, which were (in these circumstances) quite risky. Kennedy seems willing to assume that this could be possible (albeit rare), and it's that case that goes to an as-applied challenge.

Sobek said...

"Kennedy seems willing to assume that this could be possible (albeit rare), and it's that case that goes to an as-applied challenge."

If it's true that the intact D&E could possibly be both safer and medically necessary in some unusual circumstance, then the proof will be in the pudding, so to speak, and the party asserting the as-applied challenge after performing the procedure will have the factual record necessary to strike down the law.

If, on the other hand, no one ever asserts an as-applied challenge, that may reasonably be read as proof that it is never medically necessary (or that prosecutors reasonably decline to prosecute where the procedure is medically necessary).

meads said...

i agree. i can not find anywhere in Article I that Congress has the power to adopt nationwide health standards. It seems quite a reach to say that the Commerce Clause protects fetuses but not children threatened by guns or women faced with domestic violence . Seems clearly to be a state issue. Where are the States' Rights conservative judges ? Seems inconsistent with prior rulings

Sobek said...

"...purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart."

That's true, and really odd.

Ginsburg correctly notes that "Casey's principles, confirming the continuing vitality of the essential holding of Roe, and merely 'assumed' for the moment, rather than 'retained' or 'reaffirmed.'" Kennedy's failure to do that, especially given that he wrote the Casey plurality, seems like he's trying to fundamentally undermine Casey and Roe.

And yet Kennedy also states that "the three principles of Casey must coexist," one of which is the right of a woman against government intrusion. And he goes to extraordinary lengths to point out all the ways in which the Act doesn't apply, and even hints that he might overturn the whole thing on an as-applied challenge.

If this is a simple case, as Ginsburg says, of the Court's "hostility to the right Roe and Casey secured," it's oddly larded up with substantial ambiguity and a decidedly limited holding. If Kennedy wanted to simply reverse Roe and Casey, he had the votes to do it, and yet he did not.

If he wanted to knock the teeth out of Roe and Casey, he could have ditched the ambiguity and the barely concealed request for an as-applied challenge to the statute, instead requesting a facial challenge to Roe and Casey.

Frankly, I can't make heads or tails of it.

Sobek said...

"Where are the States' Rights conservative judges?"

Waiting for someone to ask that question, according to Thomas' concurrence.

Benjam said...

i agree with sobek that kennedy had the votes to overturn roe if he wanted to. he doesnt want to, which means roe is safe for now. since roe is safe, alito and roberts are being politically smart to stay in the closet with their anti-roe preferences. i would have loved to be a fly on the wall when this one was being batted around. funny that sobek also says this undermines roe and casey. to me, casey undermined roe.

the big picture is that bush has not moved the court substantially to the right but another appointment which replaces a liberal justice will move the court profoundly for decades to come. how many days left until november 2008?

egarber said...

Meads said:

It seems quite a reach to say that the Commerce Clause protects fetuses but not children threatened by guns or women faced with domestic violence.

In the context of commerce clause power, I don't think it's a question of the stated public goal of a law; it's more about whether the regulated behavior involves or has a "nexus" with, interstate commerce.

A doctor is clearly a participant in commerce: she / he needs equipment, a building, supplies, labor, etc. In fact, the law at play here prefaces itself by encompassing any "physician who, in or affecting interstate or foreign commerce..."

Preventing violence against women and keeping guns away from schools are certainly valid public aspirations, but the curbed behaviors in those scenarios don't involve commerce in any core way, imo. [Personally, I'd prefer a standard of "involves" commerce over "impacts or affects", because to me the latter might mean almost anything -- Article I is about ENUMERATED (limited) powers, after all.]

So back to medical privacy in general, to me it's more properly framed as an individual rights issue. And Randy Barnett's "powers-constraint" principle is helpful here (if I understand it right) -- i.e., the general activity does fall within the ambit of commerce power, but for the implication of a woman's privacy liberty.

meads said...

to clarify my point, like medical equipment, guns move through interstate commnerce ( Lopez)and Congree made findings that violence against women affects interstae commerce( Morrison).Nevertheless, majority held that Congress could not legislate. Seems that Court believes that State rights are more important than women's and children's rights.

meads said...

sobek said.."...purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart." Seems like a typical Kennedy minimalist conservative decision. Cuts back on Roe at the edges but doesn't fell the tree. Roberts and Alito are as conservative as advertised. Wonder why they released this controversial decision in April instead of the end of term.

egarber said...

Thanks Meads. I understand your point, but I still think we're talking about different things, in the context of commerce clause power.

to clarify my point, like medical equipment, guns move through interstate commnerce

Certainly a gun travels through commerce at some point, but in Lopez it was the mere possession near a school that was at issue. The government didn't argue that such a "possessor" was engaging in interstate commerce; the argument was that possession (itself not an economic activity) would later affect commerce -- e.g., more crime hinders the economy, etc.

A licensed doctor who is in the business of reproductive health offers a service. That service involves commerce, the same as when Auto Zone sells me a new headlight for my beat up Honda Civic. But as I said, there are some activities within commerce beyond the reach of government power, such as when a fundamental right is implicated. I think that's the issue in the partial birth debate.

( Lopez)and Congree made findings that violence against women affects interstae commerce( Morrison).Nevertheless, majority held that Congress could not legislate.

In the partial birth case, the Court did not defer to Congressional findings. In fact, Kennedy cites inaccurate information in the legislative history. Instead, the case was basically a battle between "vagueness" and the individual liberty at play.

So whatever one thinks about the opinion, I really don't see any hypocrisy.


Alex said...

A comment not on the merits of this decision - Prof. Dorf you clerked for Kennedy. Can you break the veil of silence, the shrouds of mystery, the unnecessary obliqueness that comes from former clerks refusing to speak about their justices (except with adoration) and explain how it is possible that he could write an opinion like Gonzales and not overrule Stenberg? Clearly there were five votes to overrule Stenberg. Why not come out and say that? And who is responsible for all the waxing poetic at the end of the opinion about the pain / depression that women allegedly suffer after they have had abortions - him or his overzealous law clerk(s)? (commentary that is absolutely not essential to the outcome of this case) I guess at the bottom of it - I think that we (as in the People) ought to know if this is a product of a law clerk(s) or the Justice himself - and if not an either/or proposition - then which parts are by whom and how much of it is really the Justice's handiwork?

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