This afternoon I'll be giving a talk on Gonzales v. Carhart jointly sponsored by the Yale Law School Students for Choice and the Yale chapter of the American Constitution Society. In preparation for that talk, I re-read the decision and found myself puzzling over an issue that is undoubtedly not at the top of the list of concerns of most people interested in this case: Implications for as-applied and facial litigation. (This topic is a longstanding academic interest of mine.)
Justice Kennedy's majority opinion in the case rejects the facial challenge to the Partial Birth Abortion Ban Act's failure to include a health exception because, he says, the circumstances in which intact D&E is the safest medical procedure are sufficiently unusual, if they exist at all, that they do not constitute a "substantial fraction" of the cases to which the ban applies. Dissenting, Justice Ginsburg says that the majority uses the wrong denominator, but I want to set that issue aside and assume arguendo that Justice Kennedy is right about the fractions. Still, what is the point of rejecting a facial challenge in favor of an as-applied challenge?
The notion that a law can be valid on its face but invalid in particular circumstances is certainly familiar. Indeed, that's the argument of the respondents in a case argued last week, FEC v. Wisconsin Right to Life, and during the oral argument, the Justices who comprised the majority in Gonzales v. Carhart gave it a sympathetic hearing. But the question is whether there's any practical difference between, on the one hand, facial invalidation of a law followed by severance of the invalid portion (an option that the majority rejected in Gonzales v. Carhart) and, on the other hand, what Justice Kennedy says is available after the decision: a "pre-enforcement, as-applied challenge."
One possibility might be that in the as-applied posture, the law's challengers would have to wait for an actual pregnant woman seeking a medically necessary but banned pre-viability intact D&E. There's a hint in the majority opinion that this is what's required: The penultimate paragraph states that "no as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception." That could be read to suggest that the as-applied challenge on health grounds must await a health-but-not-life-threatening circumstance for a particular woman. But this would be virtually worthless given the slow pace of litigation and the potential urgency of the medical condition, and indeed, elsewhere the majority opinion indicates that the pre-enforcement as-applied challenge would point to "a particular condition" rather than any particular woman.
It will be interesting to see how long it takes for pro-choice groups to file new as-applied challenges. Although I haven't seen any news coverage of it, perhaps they already have.