Gonzales v. Planned Parenthood Federation of America, Inc.

Issues

Given congressional findings that the techniques comprising partial-birth abortion would never be necessary to preserve the mother’s health, does the lack of such a health exception or any other facial flaw in the Partial-Birth Abortion Ban Act of 2003 render the ban unconstitutional?

Oral argument:

November 8, 2006

Court below:

United States Court of Appeals for the Ninth Circuit

The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has held that “liberty” encompasses a woman’s right to choose abortion. Although states may regulate abortion after the fetus has reached viability, they may only do so if their regulations provide an exception for procedures that are necessary to preserve the life or health of the mother. In 2000, the Court invalidated as unconstitutional a Nebraska ban on partial-birth abortions that lacked a health exception, based on district court evidence of the medical necessity of such a procedure. Congress subsequently determined that such a health exception was unnecessary, because the procedures used for partial-birth abortion, in Congress’s view, are never necessary to preserve the health or life of the mother. Congress then enacted the Partial-Birth Abortion Ban Act of 2003. In 2004, the Planned Parenthood Federation of America sued to have the Act declared unconstitutional and enjoined. The Supreme Court will now take up the constitutionality of the Act.

Questions as Framed for the Court by the Parties

Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.

Facts

In 2003, Congress enacted the Partial-Birth Abortion Ban Act (“Ban”), which defined “partial-birth abortion” as “deliberately and intentionally vaginally deliver[ing] a living fetus . . . for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and perform[ing] the overt act, other than completion of delivery, that kills the partially delivered living fetus.” 18 U.S.C. § 1531(b)(1)(A) (2003).The procedure used for such an abortion is called dilation and evacuation (“D&E”). Planned Parenthood Federation of America, Inc. v. Gonzales, 435 F.3d 1163, 1166 (9th Cir. 2006). Two types of D&E procedures exist—intact and non-intact. Id. at 1167. Both versions of the procedure begin by dilating the cervix; but in an intact D&E, doctors use forceps to remove the fetus intact in one pass, collapsing the skull to allow it through the cervix. Id. In a non-intact D&E, the doctor attempts to bring the fetus through the cervix without collapsing the head, which usually causes the fetus to disarticulate, or break apart. Id. Disarticulation of the fetus means that the doctor will need to make multiple passes to remove the multiple parts, and may be considered less safe than the intact D&E, which requires “fewer instrument passes, a shorter operating time and consequently less bleeding and discomfort for the patient, less likelihood of retained fetal or placental parts that can cause infection or hemorrhage, and little or no risk of laceration from bony fetal parts.” Id. at 1167–68.

The congressional findings in preparation for the Ban include the statement that in the “very informed judgment of the Congress . . . a partial-birth abortion is never necessary to preserve the health of a woman. Pub. L. No. 108–105, § 2(13), 117 Stat. 1201, 1203. After hearing testimony during the 104th, 105th, 107th and 108th Congresses, Congress found that the procedure “poses serious risks to the health” of the patient; that no credible medical evidence existed that the procedure was safe or was safer than other procedures; and that a “prominent medical association” concluded the procedure is not accepted medical practice, but is “ethically wrong.” Pub. L. No. 108–105, § 2(14)(C), 117 Stat. 1201, 1204. The Ban was therefore enacted in late 2003 without an exception to preserve the mother’s health. Planned Parenthood v. Gonzalez, 435 F.3d at 1169.

In early 2004, Planned Parenthood Federation of America sued in the District Court for the Northern District of California, challenging the Ban as unconstitutional. Planned Parenthood Federation of America v. Ashcroft, 320 F.Supp.2d 957 (N.D. Cal. 2004). The trial lasted about three weeks, and the district court heard the testimony of thirteen expert witnesses. Planned Parenthood.v. Gonzales 435 F.3d at 1169. The district judge held that the Ban is unconstitutional because it places an undue burden on a woman’s right to choose, is unconstitutionally vague, and lacks a required health exception; as a consequence the judge permanently enjoined enforcement of the Ban. Planned Parenthood v. Ashcroft, 320 F.Supp at 1035. The government appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the unconstitutionality of the Ban on all three bases and upheld the injunction as the only appropriate remedy. Planned Parenthood v. Gonzales, 435 F.3d at 1191. The United States requested certiorari, which was granted on the issue of the necessity of a health exception to the Ban despite congressional findings to the contrary.

Analysis

Legal Framework

In 1973, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment protects a woman’s right to terminate a pregnancy. Roe, 410 U.S. at 153. The Court also acknowledged the states’ interest in the potential life of the fetus, holding that this interest becomes compelling at the point of viability—the point at which the fetus may be capable of life outside the womb. Id. at 163. States may protect their post-viability interest by regulating abortion, unless the regulated procedure is “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 165. In Casey, the Court reaffirmed viability as the point at which a state’s interest becomes compelling, but clarified that, prior to viability, the State may only regulate abortion to the extent that it imposes no “undue burden” on a woman’s right to choose abortion. 505 U.S. at 877.

In Stenberg the Court invalidated as unconstitutional a Nebraska statute that banned “partial-birth” abortions, both because it lacked a necessary health exception and because it placed an undue burden on women’s ability to choose a D&E abortion, which the Court held was an undue burden on “the right to choose abortion itself.” 530 U.S. at 930. The Court reviewed the trial court’s evidence regarding the necessity of the D&E procedure for women’s health, and noted that the Roe and Casey requirement of “necessity, in appropriate medical judgment” could not signify absolute necessity or absolute proof. Id. at 937. Neither could the phrase refer to unanimity of medical opinion, the Court observed, since the absence of unanimity among medical professionals indicates the presence, not the absence, of risk. Id. at 937.

The government argues that the Ban unambiguously prohibits the second trimester abortion procedure known as intact D&E, but allows non-intact D&E procedures, and that the Ban is a valid exercise of the government’s “meaningful constitutional role in regulating abortion.” Brief for the Petitioners at 11. Planned Parenthood argues that the Ninth Circuit correctly found the Ban unconstitutional on three grounds: (1) it lacks a constitutionally required health exception for women; (2) it unduly burdens women’s ability to obtain pre-viability abortions; and (3) its language is unconstitutionally vague. The Ninth Circuit explicitly rejected the congressional findings upon which the Ban was based, and in so doing implicated a standard of review issue in the already contentious area of abortion regulation. Planned Parenthood v. Gonzalez, 435 F.3d at 1174. In deciding the case, the Supreme Court will clarify the constitutional requirements of partial-birth abortion statutes. Simultaneously, the Court has the opportunity to enunciate the level of deference that federal courts must apply to congressional findings relating to the constitutionality of statutes.

AnchorCongressional Deference

When Congress formulates new legislation, it determines facts from testimony and other evidence, and it uses these facts to inform and shape new laws. Congress expects federal courts to treat its factual findings with “great deference.” Pub. L. No. 108–105, § 2(8), 117 Stat. 1201, 1202. This expectation comes from the high level of deference the Supreme Court has historically afforded congressional findings in some cases.

Congress’s factual findings related to the Ban assert that “medical . . . consensus” regards partial-birth abortion as “never medically necessary.” Pub. L. No. 108–105, § 2(1), 117 Stat. 1201, 1201. Congress used this finding to justify its omission of the health exception that the Court had required in Stenberg. There the Court held that any law that regulates abortion must contain a health exception if “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health” Stenberg, 530 U.S. at 930.

The government asserts that the Ninth Circuit should have deferred to Congress’s finding on medical necessity, and argues that a court should not “replace Congress’s factual predictions with [its] own.” Brief for the Petitioners at 21 (quoting Turner II, 520 U.S. at 211). In response, Planned Parenthood argues that Supreme Court precedent expresses more than one level of deference for reviewing congressional findings. In this case, the findings do not require the highest level of deference because they are “false” conclusions to draw from the congressional testimony, which means they “are not reasonable and merit no deference.” Brief of Planned Parenthood Respondents at 27. Planned Parenthood also urges that there is a heightened need for independent judicial review of this Ban because it implicates the constitutionally-protected right to abortion, and because Congress intentionally designed the Ban to “circumvent” the Supreme Court’s ruling in Stenberg. Id. at 25–26. The government disputes that Congress attempted to circumvent Stenberg, and contends that Congress merely collected additional evidence to supplement the record the Court had used to decide Stenberg. Brief for the Petitioner at 26–27, Gonzales v. Carhart, No.05-380 (2006). This additional evidence substantially supports Congress’s subsequent finding that partial-birth abortion is never medically necessary, and is therefore entitled to judicial deference. Id. The government reasons that “an earlier judicial finding of fact [in Stenberg] does not deprive a later congressional finding of deference.” Id. at 28.

AnchorLack of a Health Exception for Women

The government argues that Stenberg’s “substantial medical authority” requirement cannot mean that complete medical consensus must exist regarding the safety of abortion procedures, because such a requirement would allow a “small minority of physicians” to dictate the constitutionality of abortion regulations by testifying contrary to the “overwhelming weight of authority.” Brief for the Petitioners at 16. Instead, the government reads Stenberg to allow Congress to make “factual findings on the medical necessity of partial-birth abortion,” and to allow courts to review these findings only to determine whether “substantial evidence supported Congress’s . . . finding.” Brief for the Petitioners at 20, 21. Planned Parenthood argues that the Ninth Circuit correctly interpreted Stenberg to require a health exception as long as there is a “lack of consensus” in the medical community about the possible medical necessity of an abortion procedure. Brief of Planned Parenthood Respondents at 27.

Planned Parenthood points out that even when the Ninth Circuit limited its inquiry to whether the evidence “substantially supported” Congress’s finding, it held that the congressional record did not support the finding. Id. at 29. Citing testimony from individual doctors, the American Medical Association, and the American College of Obstetricians and Gynecologists, the court held that Congress’s evidentiary record was “replete” with disagreement over the medical necessity of partial-birth abortion. Planned Parenthood v. Gonzales, 435 F.3d at 1174.

AnchorUndue Burden

A statute imposes an undue burden if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. Further, under Stenberg, “a statute that bans D&Es as a general category imposes an undue burden.” 530 U.S. at 938.

The government argues that the Ban’s definition of partial-birth abortion clearly limits the prohibition to intact D&E procedures because the definition requires the doctor to “deliberately and intentionally” remove the intact fetus up to specific “anatomical landmarks” before disarticulating it. Brief for the Petitioners at 11. Additionally, the government reasons that Congress’s finding that partial-birth abortions are “never medically necessary,” combined with the government’s “profound interest in potential life,” prevent the Ban from rising to the level of an undue burden. Id. at 28–29.

Planned Parenthood argues that the Ban fails to clearly define the prohibited procedure and that it thus imposes an undue burden on women seeking abortions. Brief of Planned Parenthood Respondents at 33. Citing doctors who testified both before Congress and at trial, Planned Parenthood interprets the Ban to include all D&Es rather than only intact D&Es. Brief of Planned Parenthood Respondents at 36. The “anatomical landmark” fails to restrict the definition to intact D&Es because sometimes non-intact D&E procedures require removing a substantial portion of the intact fetus from the mother’s body before disarticulation occurs. Id. Under Planned Parenthood’s reading, the Ban prohibits such a procedure. The “deliberately and intentionally” clause also fails to restrict the definition to intact D&Es because a doctor might begin a non-intact D&E and then “deliberately and intentionally” extract a fetus all the way up to the “anatomical landmark” prior to disarticulation in order to minimize the number of disarticulated parts she must extract from the mother’s uterus. Id. at 37.

According to Planned Parenthood, the uncertain definition of “partial-birth abortion” broadens the deterrent effect of the criminal liability attached to the prohibited procedure by encouraging doctors to “err on the safe side” and refuse to perform all D&E abortions. Id. at 33. Since most women who have second trimester abortions have non-intact D&E procedures, Planned Parenthood argues that discouraging all D&Es is functionally equivalent to discouraging most second trimester abortions and places a substantial obstacle in the path of a woman seeking a second trimester abortion. Id. at 34.

AnchorVagueness

The government argues that the Ban’s language restricts the prohibition to intact D&E procedures “under any reasonable understanding of that concept,” and is not unconstitutionally vague. Brief for the Petitioners at 11. Planned Parenthood argues that the Ban’s language is unconstitutionally vague for the same reasons that it imposes an undue burden, as discussed above. Because the language is vague, Planned Parenthood warns that doctors could incur liability despite their efforts to comply with the law, and that the Ban could be subject to “arbitrary and discriminatory enforcement.” Brief of Planned Parenthood Respondents at 44.

AnchorRemedy

The government argues that if the Court finds the Ban unconstitutional in some respect, the Court should issue an injunction to address the specific unconstitutional aspect, and leave the rest of the Ban intact. For example, if the Court finds that the Ban requires a health exception for women, it should order a narrow injunction to prevent the Ban from applying in situations where a partial-birth abortion is necessary to protect the health of the woman, rather than ordering a total injunction. Brief for the Petitioners at 40. Planned Parenthood argues that, because Congress purposefully omitted a health exception and carefully crafted the Ban’s definition of “partial-birth abortion,” the Court lacks the authority to read a health exception into the Ban or redefine its terms. Brief of Planned Parenthood Respondents at 47.

Discussion

The Due Process Clause of the Fourteenth Amendment protects a woman’s right to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 153 (1973). The State may regulate abortion, but it may not impose an “undue burden” on a woman’s right to choose abortion prior to viability. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992). In Stenberg v. Carhart, the Court extended Casey to hold a Nebraska ban on “partial-brith” abortion was unconstitutional because it lacked a health exception. 530 U.S. 914, 930 (2000).

In this case, Planned Parenthood argues that the Partial-Birth Abortion Ban Act’s lack of a health exception is unconstitutional under Stenberg because, contrary to the congressional findings, there is no consensus regarding the medical necessity of partial-birth abortion. Brief of Planned Parenthood Respondents at 3. The government argues that Stenberg only requires a health exception if an abortion regulation would create “significant health risks” for “a large fraction” of women. Brief for the Petitioners at 13. Further, the government argues that the Court should defer to Congress’s assessment that the Ban does not create significant health risks for women and thus does not require a health exception. Id. at 10.

Planned Parenthood also argues that the Ban imposes an undue burden on women seeking legal pre-viability second trimester abortions, rendering it unconstitutional under Casey. See Brief of Planned Parenthood Respondents at 33. The Ban imposes an undue burden because its definition of the banned “partial-birth abortion” procedure fails to indicate whether the law bans intact D&E, non-intact D&E, or both procedures, and therefore discourages doctors from performing all D&E procedures. Id. The government reads the Ban to provide specific “anatomical landmarks” that limit the prohibition to intact D&E procedures. Brief for the Petitioners at 31. In addition, the Ban only attaches liability to doctors who intentionally deliver the fetus past those “landmarks” in order to terminate the fetus. Id. Thus, the prohibited procedure is not so vague as to deter doctors from performing similar procedures. Id.

Finally, Planned Parenthood argues that the Ban is unconstitutionally vague because it fails to clearly differentiate between prohibited and permitted procedures. Reasoning that the Ban therefore does not allow doctors to avoid criminal liability by only performing the permitted D&E procedure, Planned Parenthood argues that the entire Ban must be enjoined. Brief of Planned Parenthood Respondents at 47. The government responds that Ban’s definition of the prohibited procedure “contains no ambiguous terms or phrases” and thus is not unconstitutionally vague. Brief for the Petitioners at 11. The government suggests that if the Court nevertheless finds the Ban unconstitutional in some respect, the Court should issue an injunction to address that specific aspect, and leave the rest of the Ban intact. Id. at 40.

AnchorImplications for Abortion Rights

If the Court affirms the Ninth Circuit, the total injunction against the Ban will continue. “Partial-birth abortions,” including both intact D&E and non-intact D&E procedures, will be legal. Given the legislative history of the Ban, which included extensive hearings over the course of four recent congressional sessions, such a result would likely stimulate new legislation to ban the intact D&E procedure in manner consistent with the Court’s decision.

If the Court reverses the Ninth Circuit, it will reinstate the federal ban on partial-birth abortions, and the abortion procedure described in the Ban will be illegal unless a risk to a woman’s life requires it as an emergency measure. The government argues that this result would affirm the government’s interest in life and would merely prevent “procedures that blur the line between abortion and infanticide.” Id. at 47. However, Planned Parenthood argues that the scope of the Ban would be much larger because women would be deterred from obtaining both intact and non-intact D&E procedures. Brief of Planned Parenthood Respondents at 34. In essence, Planned Parenthood argues that the Ban indirectly targets the non-intact D&E procedures that the government claims the Ban does not reach. Allowing such a broad restriction on second trimester abortion would represent a fundamental change in the Court’s historical protection of women’s right to have pre-viability abortions.

AnchorImplications for Judicial Treatment of Congressional Findings

The Supreme Court’s resolution of the health exception requirement will clarify the judiciary’s role in reviewing congressional findings. Specifically, it will determine whether the courts must always apply a single level of deference to congressional findings.

If the Court holds in favor of Planned Parenthood on the issue of a health exception, it will hold that the Ban must contain an exception to allow the banned procedure in cases where it is necessary to protect a woman’s health. Such a holding would directly conflict with Congress’s explicit finding that the procedure is “never medically necessary,” and would indicate that, at least in some instances, courts may independently evaluate the congressional evidence and establish facts that conflict with congressionally-found facts. Such a result would implicate the balance of power between the legislative and judicial branches of government.

The Court could constrain this result by emphasizing the difference between the Ban, which restricts a fundamental, constitutionally-protected right to have an abortion, and other legislation that restricts activities that are not constitutionally protected, such as attending school or driving a car. Id. at 25–26. The Court could hold narrowly that only congressional findings related to constitutionally-protected rights are subject to a lower level of deference. This result would harmonize with previous cases involving non-constitutionally protected activities, where the Supreme Court has held that the judiciary must treat congressionally-found facts with great deference. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (“Turner II”). Simultaneously, this result would protect the judiciary’s “independent judgment of the facts bearing on an issue of constitutional law.” Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 129 (1989).

If the Court holds in favor of the government on the issue of a health exception, it could require a high level of deference to congressional findings regardless of their bearing on constitutional rights. Such a result would underscore Congress’s sole power to legislate. Brief of Amici Curiae Professor Hadley Arkes and The Claremont Institute Center for Constitutional Jurisprudence in Support of Petitioner at 4. However, such a result would also constrain the Court’s authority to review the constitutionality of future legislation and limit “the judiciary’s preeminent role as interpreter of the Constitution.” Brief of Constitutional Law Professors, David L. Faigman et al., as Amici Curiae in Support of Respondents at 3. If courts had defer to congressionally-found facts regardless of the facts’ evidentiary basis, then Congress could tailor statutes to resist judicial scrutiny by grounding them in congressionally-found facts. See Brief of Planned Parenthood Respondents at 26.

Conclusion

The Partial-Birth Abortion Ban Act of 2003 does not include an exception for situations that endanger the health of the woman. Pursuant to Casey and Stenberg, an abortion regulation is unconstitutional when it fails to include such a provision if the regulated procedure may occasionally be necessary “to preserve a woman’s life or health.” In the wake of Stenberg, however, Congress concluded that the partial-birth abortion procedure would never be so required. Congress’s finding notwithstanding, a number of circuit courts have found the Ban unconstitutional on its face because of the lack of a health exception or otherwise. Thus, the Court’s decision will not only impact the future of abortion regulation, but also resolve the conflict between Congress and the courts.Written by:

Kelly Cooke

Heidi Guetschow