Caseflicks

Supreme Court of the United States • 2007

Gonzales v. Carhart

550 U.S. 124 | 127 S. Ct. 1610 | 167 L. Ed. 2d 480 | 2007 U.S. LEXIS 4338

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Takeaway

In short, Gonzales v. Carhart upheld the federal ban on intact D&E abortions, holding that the statute was sufficiently clear, did not ban standard D&E, and could survive facial review despite lacking a health exception amid medical uncertainty; the Court left open as-applied challenges in particular medical circumstances.

Background

Congress enacted the Partial-Birth Abortion Ban Act of 2003, making it a federal crime for a physician knowingly to perform a defined “partial-birth abortion.” The Act covered an abortion in which a physician intentionally delivered a living fetus to specified anatomical landmarks—either the entire head, in a head-first delivery, or the trunk past the navel, in a breech delivery—and then performed a separate overt act, other than completing delivery, that killed the fetus. The Act contained an exception when the procedure was necessary to save the woman’s life, but no exception for her health.

Physicians and abortion providers brought pre-enforcement facial challenges in Nebraska and California. After extensive trials, both District Courts permanently enjoined enforcement. They concluded that the Act lacked a constitutionally required health exception and, in the California case, that it was overly broad and vague because it could reach the standard dilation-and-evacuation (D&E) procedure used for many second-trimester abortions. The Eighth and Ninth Circuits affirmed. The Supreme Court consolidated the cases and reversed.

Issues

Issue #1

Whether the Act was unconstitutionally vague because physicians could not determine what conduct it criminalized.

Holding

No. The Act gave physicians constitutionally adequate notice of the prohibited procedure and did not invite arbitrary enforcement.

Reasoning

A penal law is impermissibly vague if ordinary people cannot understand what it prohibits or if it gives law enforcement unbounded discretion. Unlike the Nebraska law invalidated in Stenberg v. Carhart, the federal Act did not rely on the imprecise phrase “substantial portion” of a fetus. It specified objective anatomical landmarks: the entire fetal head in a head-first presentation or the fetal trunk past the navel in a breech presentation.

reasoning continued

Issue #2

Whether the Act imposed an undue burden by prohibiting the standard D&E procedure used in second-trimester abortions.

Holding

No. Properly construed, the Act prohibited intact D&E, not the standard D&E procedure in which the fetus is removed in parts.

Reasoning

The Act requires an intentional vaginal delivery of a living fetus to an anatomical landmark, followed by a distinct overt act that kills the partially delivered fetus. Those elements describe intact D&E: the physician intentionally brings a largely intact fetus to the specified point and then collapses or otherwise acts on the head to complete the abortion.

A physician who begins a standard D&E intending to remove the fetus in pieces does not have the intent required by the statute, even if an unexpected partial intact delivery occurs. The Act’s scienter provisions protect a physician from criminal liability where the prohibited anatomical delivery was accidental or inadvertent.

The Court also read the Act, where possible, to avoid constitutional doubt. Its ordinary language, its anatomical landmarks, and its separate fatal-act requirement distinguished it materially from the Nebraska statute in Stenberg, which had been held broad enough to cover ordinary D&E. Because standard D&E remained available, the Act did not facially create a substantial obstacle to previability abortion.

Issue #3

Whether the Act was unconstitutional because it lacked an exception for abortions necessary to preserve a woman’s health.

Holding

No, not on a facial challenge. Medical uncertainty about whether intact D&E was ever necessary for women’s health did not require invalidating the Act facially.

Reasoning

Under Casey, the government may regulate abortion before viability so long as it does not impose an undue burden, while retaining legitimate interests in protecting potential life and regulating the medical profession. The Court held that Congress could prohibit a particular abortion method that it reasonably viewed as implicating distinctive moral, ethical, and medical-professional concerns, provided safe alternative methods remained available.

The trial evidence showed genuine disagreement among medical experts. Some physicians maintained that intact D&E could be safer in particular circumstances; others concluded that standard D&E and other methods were safe alternatives and that the claimed advantages of intact D&E were unproven. The Court refused to treat medical disagreement as a rule requiring legislatures always to adopt the view favoring the unrestricted procedure.

The Court did not give dispositive deference to Congress’s factual findings. It acknowledged that parts of those findings were inaccurate or contradicted by the trial record. Still, independent review showed sufficient medical uncertainty, together with the availability of standard D&E and other alternatives, to defeat the claim that the Act facially subjected women to significant health risks.

The Act applies only when the fetus is living at the relevant point. The Court noted that fetal demise by injection before an intact extraction appeared to be outside the statute’s prohibition, although the Court did not rest its holding exclusively on that alternative. The life exception also protected women whose lives were endangered.

Issue #4

Whether a facial injunction was the proper remedy for claimed health-related applications of the Act.

Holding

No. Potential unconstitutional applications should be addressed, if necessary, through discrete as-applied challenges rather than a facial invalidation of the entire Act.

Reasoning

The plaintiffs had not shown that the Act was unconstitutional in a large fraction of the cases in which it was relevant. The Court emphasized that a facial challenge carries a heavy burden outside the First Amendment context and that the Act regulated every planned use of the prohibited procedure, not merely emergencies or medically complicated cases.

An as-applied challenge would permit a court to assess a particular medical condition, the actual risks of available alternatives, and whether use of the prohibited procedure was necessary in that defined setting. The Government acknowledged that pre-enforcement as-applied challenges could be brought. This route, the Court concluded, offered a more appropriate means to protect women in specific circumstances without striking down the Act as a whole.

Concurrences

Justice Thomas

Reasoning

Justice Thomas joined the Court’s opinion because, in his view, it correctly applied the Court’s existing abortion precedents, including Casey. He wrote separately to reiterate his position that Roe v. Wade and Casey have no basis in the Constitution.

He also stressed that the Court did not decide whether Congress had authority under the Commerce Clause to enact the federal ban. The parties had not raised or briefed that question, the lower courts had not addressed it, and it fell outside the question presented.

Dissents

Justice Ginsburg

Reasoning

Justice Ginsburg argued that the Act directly conflicted with Roe, Casey, and Stenberg because it prohibited a previability abortion procedure without any exception for a woman’s health. In her view, those precedents require a health exception whenever substantial medical authority concludes that a prohibited procedure may be safer for some patients; they do not permit a legislature to prohibit the procedure merely because medical professionals disagree.

The trial courts had conducted extensive evidentiary hearings and found substantial medical support for intact D&E in defined circumstances. Physicians testified that it could reduce the risk of cervical or uterine injury, retained fetal tissue, injury from bony fragments, bleeding, infection, and anesthesia-related complications. They also identified particular conditions—such as uterine scarring, bleeding disorders, certain cardiac conditions, placenta complications, and fetal abnormalities—in which it might be the safest method. Justice Ginsburg maintained that these findings deserved respect and that conflicting testimony could not erase the substantial medical authority supporting a health exception.

She rejected the majority’s conclusion that alternative methods saved the statute. Standard D&E, labor induction, and fetal injections may carry greater risks for particular patients, and injections may themselves be medically contraindicated. A woman whose health requires the banned procedure cannot safely wait for piecemeal litigation, while a physician faces criminal prosecution for exercising medical judgment in an unanticipated medical emergency.

Justice Ginsburg also contended that the Act did little to advance fetal life because it banned only one method of abortion and did not prevent abortion itself. She viewed the majority’s justification as resting principally on moral disapproval of the procedure and on unsupported assumptions that women would regret abortion if informed of procedural details. In her view, such assumptions improperly displaced women’s autonomy and their ability to make informed decisions with their physicians.

Finally, she argued that the majority misapplied Casey’s “large fraction” formulation. For the relevant group—women whose health would be endangered if intact D&E were unavailable—the absence of a health exception burdens every case to which it matters. Because a health exception is designed for exceptional but medically necessary cases, its constitutional necessity cannot depend on showing that those cases form a large proportion of all second-trimester abortions.