Wednesday, May 09, 2007

More (or Less) Restraint on Gonzales v. Carhart

Guest Blogger

Priscilla Smith

(Priscilla Smith represented Dr. Leroy Carhart in Gonzales v. Carhart on behalf of the Center for Reproductive Rights)

In my first post, “A Restrained View,” I discussed some of the ways that the Gonzales opinion is much worse than Professor Paulsen indicated in his post “Half a Cheer (or Less) for the Partial-Birth Abortion Decision,” (worse to me, better to him). Before starting in on the additional topics I promised to cover in my second post, let me just correct one common misperception about the law, still repeated in the media and academic circles alike. I’m sorry Professor Paulsen, but this one will actually bum you out.

The misperception is understandable. The law was marketed as a ban on post-viability abortion, with the clever use of terms like “late-term” abortions, “inches from life” and indeed “partial-birth” abortion itself, which focus groups indicate makes people think they are talking about abortions at full-term. Most-legislators, other than those in the inner anti-abortion circle, actually believed they were passing a law to ban post-viability abortions. And most members of the public, like my Brooklyn taxi driver, support the law because they also think it is designed to stop a rampant wave of post-viability abortions. (Well, the taxi driver doesn’t think that anymore.)

Despite this marketing campaign, however, the law is not limited to post-viability abortions, or in fact to any specific gestational age. What’s more, and here’s the kicker, it doesn’t actually apply to any post-viability abortions that I know of. In fact, the trial court in Nebraska, uncomfortable with the broad injunctions granted in facial challenges and whose ruling actually anticipated the Court’s ruling in Planned Parenthood v. Ayotte, refused to give us an injunction as to post-viability procedures. This was because there was simply no evidence in the case that any post-viability abortions are done in a way that would violate the law. This, in turn, is because in those rare and tragic circumstances where post-viability procedures are performed, fetal demise is induced prior to beginning the procedure. In the words of the law, the abortion is not performed on a “living” fetus. How many times have I made this little speech? You don’t want to know.

State interests

Now, on to Professor Paulsen’s claim that the Court’s recognition in Gonzales of a state interest in protecting women from themselves is not new at all but actually is a “not at all implausible reading” of Casey that will have little impact. While thought-provoking, this is just wrong and doesn’t give Justice O’Connor’s view of abortion jurisprudence its due. In fact, this is another way, (see my original post for some others), in which the Court turns Casey on its head.

In Casey, the Court makes clear that it is reaffirming Roe’s essential holding which it describes as having “three parts.” For our purposes, the important one is the third one, that is, “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Casey, 505 U.S. at 846. In considering the provision of the law at issue there that mandated certain information be given to the woman, the Court held that a State may “further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion.” Id. at 883 (emphasis and double emphasis added). In other words, it is in the context of furthering this subsidiary interest in ensuring that decisions are informed that the State may express its preference for childbirth over abortion.

There are other limitations on the interest recognized in Casey and the State’s ability to mandate the information in the statute. For example, the Court specifically points out that the statute at issue there did not require a physician to comply with the provisions if “he or she can demonstrate . . . that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.” Id. at 884 (citing 18 Pa. Cons. Stat. Sec. 3205 (1990)). This limitation led a district court in Alabama to issue a limited injunction against a statute there that required doctors to give information about normal fetal development to women who were seeking abortions because of serious fetal anomaly. (Talk about cruel – let’s remind the woman with a wanted pregnancy whose fetus has either of the fatal anomalies Trisomy 13, or anencephaly (lack of a forebrain) of what her fetus would look like if it didn’t have Trisomy 13 or anencephaly).

The problem with pointing to Casey, then, as justification for Gonzales, should be obvious, as Justice Ginsburg also points out. If this were a so-called “informed consent” statute, we could argue about whether or not the information would contribute to a more informed decision or was false or misleading. But this is not an informed consent statute at all. It is a ban, whether or not the woman’s decision is mature and informed, whether or not she will suffer serious medical complications, uterine perforation, scarring, hysterectomy, hemorrhage, whether or not she has a bleeding placenta previa, chorioamnionitis, uterine or placental cancer, etc. I suggest a review of Williams Obstetrics or a high-risk pregnancy text. (Some of the legislators – and even judges -- don’t even know where the cervix is, or even what it is, much less anything about pregnancies that go wrong.)

So why does Kennedy add this new state interest? I think it is a tacit recognition of two things. First, it comes out of the recognition that neither of the previously recognized state interests, those in promoting women’s health or in promoting fetal life, even as the latter is interpreted in Casey to allow the subsidiary interest in insuring a woman’s choice is “mature and informed,” justifies the ban’s intrusion on the right to liberty here, an intrusion on the woman’s physical/bodily integrity and her ability to protect her own health. Second, it is a recognition that the interest Kennedy proposed in his Stenberg dissent – a state interest in “morality” -- needed serious help, especially given Kennedy’s statements rejecting legislating based on individual or majoritarian “morality” where individual liberties are concerned, most recently in Lawrence v. Texas (sigh). My pet theory is that Roberts sweetly told him how weak that was and led him to the amicus briefs and other information on the so-called “feminist” theory that women need to be “protected from” abortion See (especially “voices for women who mourn” section); cf Gonzales v. Carhart, No. 05-380, slip op. at 15-17 (April 18, 2007) (J. Ginsburg, dissenting); Reva Seigel, The New Politics of Abortion: an Equality Analysis of Women Protective Legislation, -- University of Illinois Law Review 991 (2007).

Then Kennedy tries to tie this “take your liberty to protect you from your hysterical self” theory to the informed consent state interest in Casey (admittedly a somewhat paternalistic interest itself, but on a different level and a subject for other times), even though the law has nothing to do with informing women of anything and thus doesn’t “serve” the interest in any way. So the real (and new) interest recognized here is an interest in preventing women from having a choice because some women will regret that choice, and despite that the choice will prevent other women from suffering enormously.

Speaking of regret, how many of us regret that the law was passed? My favorite legislation I would like enacted under the guise of this new interest is a law that would ban sex without condoms because many (not just some) men regret getting their partner pregnant. There is of course lots of data here, from the number of men who beat their partners when pregnant (numbers increase in pregnancy), the number who leave them when they find out they are pregnant, and the number who stop paying child support. There is more of a “fit” here too since to get pregnant, you would have to go to the doctor for insemination which requires much more effort and is performed when you are not in the throes of passion. But I digress.

Then we get to one of the most (but there are so many) interestingly obscure parts of the opinion. After discussing this new interest, the Court does not tell us how much of an intrusion is allowed here. In other words, though the Court Kennedy seems to operate on the notion that the risk to health here is minimal, insubstantial, the discussion of this – central to Justice Kennedy’s Stenberg dissent and key to further implementation of the “no automatic exception for health” standard – is missing. Moreover, if the testimony of many of the most-respected high-risk ob/gyns in the country is not enough to establish substantial risk, what is? I suppose one is supposed to run to court with the woman with chorioamnionitis waiting in her hospital bed to obtain an injunction perhaps with her as a class representative for all women with chorioamnionitis and try to get a ruling before sepsis sets in and her condition becomes life threatening because then she might actually die. Then one must hope that the government is not able to get a stay on the ruling with an emergency appeal (think 4th, 5th, 11th, maybe 6th, 7th,8th, 10th, DC Circuits) before the procedure is performed. By the way, is the doctor safe, even then? Do you have to go to court with each type of condition? With each combination of conditions? Which ones are substantial enough for the courts to agree the increased risk of a D&E in those circumstances is substantial? What about the women without particular medical conditions whose uteruses will be perforated because their doctors performed non-intact D&Es rather than intact D&Es? Oh well. The “tie goes to the woman” rule I discussed in my last post is now more like two strikes, you’re out.

This failure to address the impact of the intrusion on a woman’s health is really the ultimate betrayal of Justice O’Connor’s Casey. Casey discussed the origins of the liberty interest recognized in Roe, grounding it in both the right to intimate relationships, decisions about the family and children, and the right to “personal autonomy and bodily integrity.” Casey, 505 U.S. at 857 (“Roe stands at an intersection of two lines of decisions . . .”). The question was whether the state’s interests allegedly served by the legislation outweighed the extent of intrusion on the liberty interest. Isn’t that the question we all would like to have asked if the state is intruding into our bodily integrity, our medical care? This is the question that is for the most part unexamined in the opinion, that leaves it unmoored not only from abortion jurisprudence, but from other cases concerning intrusion on personal liberties.

What does this all mean? Doesn’t it remind you of the Chief Justice’s Reagan Justice Department memo (uncovered during the confirmation hearings) advising an incremental approach to dismantling Roe? Of course it must. I don’t mean to let Kennedy off the hook. I’ve realized how my hopes for him were terribly misplaced dreams of a litigator facing a doomed case. But we should remember that this opinion is certainly not the end for the Chief. Once you can legislate to ban certain abortions to save women from themselves, why can’t you ban them all? Or at least second trimester abortions? Or all abortions for minors? Forget judicial bypass? I don’t mean to say that I think Justice Kennedy is necessarily going there. Maybe I’m a romantic, but the man who wrote Lawrence v. Texas, who at one point seemed to understand how important the right to abortion is for women’s liberty and equality, who held the line at non-intact D&E, whatever we think of that line, may still understand the essential equality interests at stake here. But the Chief is laying a ground work for the ultimate blow. With the viability line and the health exception gone (always the targets of the “partial-birth abortion” campaign), there isn’t much left. And the point of the “abortion actually harms women” argument – even though its been disproven -- is to bring Roe in line with Plessy and to give cover to those who would overturn Roe by likening the discovery that abortion harms women to Brown’s discovery that segregation was actually harmful (who knew?).


Thanks for the very interesting post. Given your position, would it be fair to say that you would characterize Gonzales as a "broad" ruling, rather than a "narrow" one"? And second, how would you state the "rule" of Gonzales? Is it something along the lines of:

"If there is medical uncertainty, i.e., disagreement(?), as to whether a particular procedure is necessary to preserve the life/health of the mother, then a legislature may prohibit such a technique" ?

If that's the rule, then I don't see why Kennedy has to trot out the "state's morality interest" in order to uphold the federal ban. But your post implies that my suggested rule does not accurately reflect Gonzales' analysis -- so how would you phrase it?

This is a great post. Extremely informative.

My question for you is: what is the actual status of the "woman-protective" "women regret it" portion of the opinion? Is it a holding? If it dropped out, would the ban still be supported, in all its strangely irrational saving-not-a-single-fetus glory, by this decision or this court?

The way you talk about the woman-protective language makes it sound like an essential pillar of this decision, but the decision itself doesn't explicitly frame it that way.

I was hopeful that a health exception ala Ayotte would be the ruling here, but a reading of Kennedy's dissent (including its concerns about using neutral medical language, since it won't allow us to see how immoral the whole thing is) in Stenhart wasn't promising, is it?

As to Feminists for Life, Roberts' own wife is a member. He's intimately aware of that position, one might say.

Millions of actual men have sex without condoms.

But it is unclear that there are any women who would need the abortions banned by the law in question. Indeed, the class appears to be empty.

A ban that impacts zero people is not equivalent to a ban that impacts millions of people.

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