JB

The House has passed a new ban on partial birth abortions. The Senate passed a similar bill in March. After differences between the House and Senate versions are ironed out, the bill be sent to President Bush for his signature.

Is the statute constitutional? In a word, no.

Here is the relevant text of the partial birth abortion statute (Senate version):

Sec. 1531. Partial-birth abortions prohibited

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.

(b) As used in this section--

(1) the term `partial-birth abortion' means an abortion in which--

(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus;

As a preliminary matter, what Congress calls "partial birth abortion" does not correspond to existing medical terminology.

The most common abortion procedure in the second trimester (from about 12 to 24 weeks) is "dilation and evacuation" (D&E). D&E involves dilation of the cervix, removal of at least some fetal tissue using nonvacuum surgical instruments. After the 15th week D&E procedures may require that the fetus be dismembered or that parts of the fetus be collapsed in order to facilitate evacuation from the uterus. When the fetus is dismembered, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. D&E poses risks of mortality and other medical complications that are significantly lower than those which accompany the next safest mid-second-trimester procedures, called induced labor procedures.

A variation of D&E, known as "intact D&E," is used after 16 weeks. It involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. When the fetus presents head first, the doctor will insert an instrument into the fetus' skull while the fetus is still in utero and remove the brain and other intracranial contents. When the fetal skull collapses, the physician will remove the fetus.

The feet-first method of intact D&E is known as "dilation and extraction" (D&X). The D&X procedure is the one ordinarily associated with the term "partial birth abortion." After dilating the cervix, the physician grabs the fetus by its feet and pulls the fetal body out of the uterus into the vaginal cavity. Because at this stage of development, the head is the largest part of the body, the fetus' head will be held inside the uterus by the woman's cervix. The fetus is partly outside the woman's body (hence "partial birth"), while the head is stuck inside. To remove the fetus, the physician uses an instrument such as a pair of scissors to open the skull. The physician will then either crush the skull or use a vacuum to empty the fetal skull, collapse the fetus' head, and pull the fetus completely out of the uterus.

The Congressional statute defines "partial birth abortion" to include both D&X, when the fetus presents feet first, and also cases where the fetus presents head first. That would seem to include intact D&E procedures where the fetus presents head-first. But what's crazy about the way the statute is written is that it doesn't conform to the actual practices of intact D&E in the second and third trimesters. After 16 weeks of pregnancy, no doctor would pull the fetus's head out of the body and then collapse the skull or otherwise destroy the fetus. As just noted, the problem is that the fetus' head is the widest part of the body. Hence in performing intact D&E abortions after 16 weeks when the fetus presents head first, the doctor will crush the skull while the fetus is still inside the mother's body. This sort of intact D&E just isn't "partial birth abortion" at least as defined by the statute.

If that's the case, then what types of D&E procedures could the statute possibly apply to? The only cases it would seem to apply to are D&E procedures performed well before viability, when the fetus's head is sufficiently small that it could be pulled out alive head first without injuring the mother. If the fetus is removed head first, and, in the process, is destroyed, then the abortion would seem to fall literally within the text of the statute (the head was out of the mother's body when the fetus was killed). But if so, that would cover a very large part of pre-viability D&E abortions. Congress would have outlawed lots of previously legal abortions in the second trimester.

In the discussion that follows, I will assume that the statute applies only to D&X abortions, and possibly to intact D&E abortions (although, as noted perviously, these will never be performed in a way that the statute assumes), but not to other D&E abortions. If the language were read to apply to the standard form of D&E abortions it would clearly be unconstitutional under Casey and Stenberg v. Cahart.

Even with this limiting construction, the statute has constitutional problems: The basic difficulty is that the law makes no exception for the health of the mother, and it does not distinguish between pre and post viability abortions.

Under the Supreme Court's 1992 Casey decision, although governments may ban all abortions after viability, they must make an exception for abortions necessary to preserve the life or health of the mother.

Before viability, governments may impose even fewer conditions on abortion. They may not place an undue burden on a woman's exercise of her right to an abortion. The Supreme Court reaffirmed this framework in Stenberg v. Cahart, 530 U.S. 914 (2000).

With respect to pre viability abortions, what Congress calls "partial birth abortion" (which includes intact D&E and D&X abortions) must be permitted if the procedure is safer than existing alternatives. Forcing women to undergo a less safe procedure would impose an undue burden on their right to an abortion. The Court explained in Casey that

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

A complete ban on partial birth abortions cannot plausibly be justified as furthering women's interest in health or safety, because it removes from consideration a method that in many cases is safer than induced labor methods of abortion. Hence it places a substantial obstacle in the path of women for whom the procedure would be the safest possible course. Nor can the ban be justified, as the 24 hour waiting period was in Casey itself, as a means of persuading women to choose childbirth over abortion. A total ban on a medical procedure is not a method of persuasion.

In Stenberg v. Cahart, the Court followed this line of reasoning in striking down Nebraska's partial birth abortion statute. It held that "[A] State cannot subject women's health to significant risks ... where state regulations force women to use riskier methods of abortion." ... A risk to a woman's "health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely." It seems clear that the statute is unconstitutional at least as applied to pre-viability abortions. (The ban on partial birth abortions is often thought to be a ban on late term abortions, but what is interesting about this statute is that it is not limited to late term abortions at all. Indeed, as I've pointed out, if read broadly it could ban a very significant number of second trimester abortions).

Congress has tried to get around the constitutional problems by finding as a matter of fact that "partial birth abortions" as it defines them are less safe than other forms of abortion. Since they are always less safe, there's no constitutional harm in banning them. The preamble to the statute states that "a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care." The statute argues that the Court's decision in Stenberg should not apply because the Court was bound by the factual findings of the trial court, which found that partial birth abortion was sometimes medically indicated and was sometimes the safest method of abortion:

(8) . . . [U]nder well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the 'clearly erroneous' standard. [This is the standard by which appellate courts review findings of fact by trial courts.] Rather, the United States Congress is entitled to reach its own factual findings--findings that the Supreme Court accords great deference--and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.

(9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), the Supreme Court articulated its highly deferential review of Congressional factual findings when it addressed the constitutionality of section 4(e) of the Voting Rights Act of 1965. Regarding Congress' factual determination that section 4(e) would assist the Puerto Rican community in `gaining nondiscriminatory treatment in public services,' the Court stated that `[i]t was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations. . . . It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) in the application in question in this case.' (Id. at 653).

This argument won't fly, because even if Congress makes findings of fact, courts are still required to make their own independent determination whether a statute will violate fundamental constitutional rights. Congress can't by its own fiat declare that banning a certain medical procedure does not constitute an "undue burden" to a woman's right to abortion. Courts still have to decide that issue, and where the meaning of a constitutional doctrine is tied up with factual determinations of health and safety, courts have a constitutional obligation to decide whether Congress's findings of facts effecitvely undermine basic constitutional guarantees. Otherwise, Congress could do an end-run around constitutional rights by claiming that certain facts were simply the case.

In the Katzenbach v. Morgan case cited above, it was easy for the Court to defer to Congress. That is because Congress was not trying to limit fundamental rights in passing the Voting Rights Act of 1965. Quite the contrary: it was passing legislation in aid of enforcing fundamental rights. The Court argued that Congress had good reasons to think that the Voting Rights Act would help secure constitutional rights and so it was happy to defer to Congress's judgments about why the Voting Rights Act was necessary. Katzenbach is the opposite of this case, in which Congress is trying to limit women's rights by arguing that a certain form of abortion is never medically indicated and therefore women have no right to have it performed.

Where a fundamental right is at stake, courts may defer to Congressional findings of fact, but they have to make their own independent assessment of whether the legislation impinges on fundamental liberties. The preamble to the partial birth abortion statute tries to get around this objection by pointing to the Turner case: the issue there was whether must-carry obligations on cable companies violated their First Amendment rights. That case involved legislation that might impinge on a fundamental right, and the Court deferred to Congressional findings of fact.

The Court did use Congressional findings of fact in Turner, but it didn't just accept them blindly. Rather, it held that important issues of fact had to be determined in order to decide whether the First Amendment was violated. It didn't just accept Congress's determinations at face value, and it sent the case to a trial court to conduct hearings. The trial court, in turn compiled an extensive record that included not only Congress's findings but also its own findings. What the Court did not do in Turner is what Congress wants it to do here. It didn't announce that the First Amendment isn't violated if Congress says it isn't, and that burdens on First Amendment rights don't exist if Congress says they don't exist. Above all, it didn't say that Congress could effectively overrule the Court's free speech precedents by stating findings of fact in the preamble to a statute. The same principle applies in this case. Congress can't make restrictions on abortion legal simply on its own say-so.

Because the question of health and safety is crucially linked to the application of the Court's doctrines in Casey and Stenberg, Congress's findings of fact simply can't be dispositive. Although courts should consider those findings of fact, there is no obligation for the Supreme Court to overrule its previous precedents in order to defer to them. And under those precedents, the new partial birth abortion statute is pretty clearly unconstitutional.