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D & X / PBA procedures

Federal law: Supreme Court activity

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Lower Court activity is covered in a separate essay

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Supreme Court accepts an appeal:

On 2005-SEP-26, following the ruling by the 8th U.S. Circuit Court of Appeals, the federal Department of Justice asked the U.S. Supreme Court to review the Nebraska case.

On 2006-FEB-21, the U.S. Supreme Court agreed to review the Nebraska and California lawsuits. The makeup of the court that examines the federal law is very different from the year 2000 when the Nebraska state law was examined. In the 2000 ruling, Stenberg v. Carhart, the state law was declared unconstitutional by a vote of 5 to 4. Justice Sandra Day O'Connor voted with the majority. She has since retired. She had a track record of being a swing vote, sometimes voting with the conservatives on the court and sometimes voting with the liberals. Her replacement was Justice Samuel Alito who was sworn in on 2006-JAN-31. He is expected to be a strict constructionist, conservative jurist. The net result has been to swing the Supreme Court sharply to the right. With two new constructionist Justices on the court, it was expected that the federal law will be declared constitutional by a vote of 5 to 4, even though it contains the same defects as the Nebraska state law:

bulletExcessive vagueness that might cause the law to be applied to early abortions.
bulletA lack of a exemption in instances where serious health problems are likely to result.
bulletFear of criminal liability on the part of physicians may cause them to make decisions that are not in the interest of their patients.

Judge Alito did help overturn a New Jersey state law banning D&X procedures in the past. However he was constrained by the necessity of following previous Supreme Court rulings. Now, he is a Justice on the Supreme Court and can fully exercise his beliefs.

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Reactions to the Supreme Court decision to hear the cases:

Some individuals and advocacy groups reacted very positively to the decision by the court to hear the Nebraska and California cases. Others took the opposite view:

bulletDenise M. Burke, spokesperson for Americans United for Life said:

"We are heartened by the Court's willingness to revisit this issue. We are hopeful that the Court will reverse course and repudiate its 2000 decision in Stenberg v. Carhart which sanctioned this type of infanticide just as it has previously renounced decisions approving racial segregation and the internment of Japanese-Americans in World War II without due process of law." 1

bulletClarke Forsythe, spokesperson for Americans United for Life said:

"We hope the Court will use this opportunity to finally reexamine its broad health exception requirement that demands abortion must be allowed at any time of pregnancy for any reason including 'emotional health' and 'familial health'. The Court's extreme definition of 'health' has come to mean abortion-on-demand at any time of pregnancy- something the American public just does not support. A ban on partial-birth abortion is supported by 70 percent of the public. What the Court should do here is to allow the will of the people to stand."1

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Supreme Court decision:

On 2007-APR-18, the U.S. Supreme Court ruled that the federal D&X law is constitutional. 2 The vote was 5 to 4 -- the usual result for cases involving ethical decisions. This was a widely expected ruling, because of the Supreme Court's recent movement sharply to the right. The four most conservative members of the Supreme Court, Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas and Antonin Scalia, voted as a block in favor of the law's constitutionality. They were joined by Justice Anthony Kennedy who wrote the decision. Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens were in the minority.

The court noted that:

bulletGonzales v. Carhart (05-380): The Federal District Court granted an injunction that prohibited the Attorney General from enforcing the act, except in those cases in which there was no dispute over whether the fetus was viable.

This decision by the trial court was based on two considerations:

bulletThe law contains an exemption that allows a woman to obtain a D&X procedure if the continued pregnancy threatened her life. However, it does not contain a health exemption that would allow her to obtain a D&X procedure if needed to prevent very serious negative consequences to her health -- perhaps involving permanent disability.
bulletThe law was vaguely worded so that it banned other D&E procedures in addition to the intact D&E procedure.

The Eighth Circuit Court of Appeals sustained that injunction, citing that there was no consensus among physicians about the necessity of D&E procedures. This requires legislatures to err on the side of protecting women's health by including a health exception.

bulletPlanned Parenthood Federation of America v. Gonzales (05-1382): The District Court had declared the law unconstitutional because:
bulletIt unduly restricted women's access to a second-trimester abortion.
bulletIt was too vaguely worded.
bulletIt lacked a health exemption.

The Ninth Circuit Court of Appeals sustained that injunction.

The Supreme Court rejected the unanimous decisions of all six lower courts, by ruling that:

bulletThe law is not vague.
bulletThe law does not restrict abortion access unduly. Apparently, the court recognizes that there are other, higher risk methods to terminate advanced pregnancies.
bulletThe law does not need to have a health exemption. The Supreme Court agreed with the statement of the Eighth Circuit Court of Appeals that there was no consensus among physicians about the necessity of D&E procedures.

Justice Kennedy wrote:

"Whether the act creates significant health risks for women has been a contested factual questions. Both sides have medical support for their position."

However, Kennedy rejected the suggestion of the Court of Appeals that this requires legislatures to err on the side of protecting women's health by including a health exception. He suggested that individual women and their physicians should try to resolve health threat issues through the courts. He wrote:

"In an as-applied challenge the nature of the medical risk can be better quantified and balanced. ... The prohibition in the act would be unconstitutional, under precedents we assume to be controlling, if it subjected women to significant health risks." 3

Unfortunately, this approach would not be helpful for a woman faced with a significant health risk and needing a D&X procedure without delay to prevent future disability. A medical emergency is no time to hire a lawyer and launch a lawsuit.

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The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Supreme Court Agrees to Review Federal Partial Birth Abortion Ban; Court Should Reverse Course Says..." U.S. Newswire, 2006-FEB-21, at: http://www.romingerlegal.com/
  2. The text of the Supreme Court decision 2007 U.S. Lexis 4338 is at: http://www.priestsforlife.org/
  3. Warren Richey, "US Supreme Court allows late-term abortion ban. The 5-to-4 ruling upholds a ban on 'partial-birth' abortion. In 2000, the court had struck down a similar ban," The Christian Science Monitor, 2007-APR-19. at: http://www.csmonitor.com/

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Copyright 2006 & 2007 by Ontario Consultants on Religious Tolerance.
First posted: 2006-FEB-21
Last updated: 200
Author: B.A. Robinson

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