In Gonzales v. Carhart 550 U.S. 124 (April 18, 2007), the U.S. Supreme Court, by a 5-4 margin, upheld the federal statute banning partial birth abortion. The Court overruled numerous lower court decisions holding the law unconstitutional.
The Partial Birth Abortion Act of 2003 banned the use of a highly controversial abortion procedure, "dilation and extraction" (D&X), otherwise known as "intact dilation & evacuation" (Intact D&E). The procedure, proponents of the Act argued, resembles infanticide. Congress argued that its use demeaned the medical profession, and banning such a procedure furthered the interests of correcting this problem, and also represented a furtherance of the state's interest in unborn life, the third "Casey Factor." Congress provided that D&X could be used where the life of the mother would otherwise be threatened, but not where only the health of the mother was threatened. This exception was omitted against the direct requirement of Stenberg v. Carhart, and Congress sought to justify this omission on the grounds that Congress had made findings that D&X was profoundly unhealthy or, at least, lacked any health benefits. The Act also commanded that the Supreme Court pay heed to these findings.
The Act was challenged immediately upon its passage. Lower courts in different circuits issued permanent injunctions against the enforcement of the Act, accepting the plaintiffs' arguments that the Act was,
- Unconstitutionally "void for vagueness," since it seemed to prohibit other abortion practices, unfairly burdening doctors who would not know whether or not they were within the letter of the law,
- Unduly burdensome on women, since the Courts found that the Act could be read to prohibit other, legitimate abortion practices, and,
- Unduly burdensome on women, for lacking a health exception per Stenberg.
The Supreme Court took certiorari to address these questions, and issued its holding on 18 April 2007, upholding the Act in full.
Holding of the Majority, by Anthony Kennedy
Justice Kennedy held, for a majority of 5 justices, that the Act was constitutional.
The majority first disagreed with the lower courts, finding that the Act did not ban any abortion practice other than specifically D&X, since it described the procedure to be banned in detail. Further, high mens rea requirements would prohibit conviction for a doctor accidentally performing D&X, as well, so the Act was not only not unconstitutionally vague, but went very far to protect against erroneous conviction. As a result, there would be no undue burden imposed on doctors or women, since other abortion procedures would still be available for use within the period for which an abortion is legal under Roe and Casey - that is, pre-viability. The Court employed the doctrine of constitutional avoidance to make sure that doctors and legislators would be aware that other abortion procedures, specifically D&E, a popular but more humane variant of D&X, would not be banned. The majority also agreed with Congress on all of its moral "prongs" - that D&X was inhumane, devalued life, devalued medicine, and should be banned.
Additionally, Justice Kennedy deferred to Congress' findings that D&X lacked any health benefits. Although the issues of fact on this matter were heavily contested, Kennedy agreed with the defendant Attorney General, that Congress may legislate even where there is a lack of medical "consensus," since anything less would impose an insurmountable obstacle to any medical regulation. As such, since D&X lacked any health benefits, an exception for the health of the mother would be wholly duplicative, and was therefore not needed.
However, the Court noted that there may be instances where D&X would be preferable. As such, although the Court found the Act facially constitutional, it held that it was still vulnerable to an as-applied challenge, which would carve an exception into the Act in very discrete and specific medical circumstances.
Justice Ginsburg's Dissent
Justice Ginsburg, dissenting with three other Justices, argued that "liberty finds no refuge in a jurisprudence of doubt," citing a famous quote from Casey, and that the Court had impermissibly muddled previous doctrines by banning a procedure that could be used pre-viability, and therefore permissibly under Casey and Roe.
She also argued that Congress' "findings" that D&X was never safe or healthy were actually written and presented by unqualified or suspect doctors with little experience in abortion medicine, and no experience in D&X. On the contrary, when full evidence was taken and read next to this unqualified testimony (as it was at the district court level in the cases leading to Carhart), D&X did possess some health benefits, which she cited. She also protested that the state's interest in fetal life was being advanced - after all, the Act saves no lives, only provides for a different method for abortion.
Ginsburg concluded her dissent by grounding the abortion case line within feminist thought, a perspective advocated by the late Justice Blackmun.