Facts: After the Court invalidated Nebraska’s regulation of “partial birth abortions,” in Stenberg v. Carhart, 530 U.S. 914 (2000), Congress adopted the Partial-Birth Abortion Ban Act of 2003, which sought to limit dilation and extraction (D&X) abortion procedures, in which fetuses were purposely killed when part of their bodies had been delivered and part was actually in the birth canal. Congress designed the law to be more specific in its application and coverage, but the lower courts that reviewed the legislation struck it down on the authority of Stenberg.
Question—Do the regulations on abortion in the Partial-Birth Abortion Ban Act of 2003 constitute an undue burden on a woman’s right to get an abortion?
Decision—No.
Reasons—J. Kennedy (5–4). After reviewing the procedures used in abortion, Kennedy described how testimony about the procedure had led to public revulsion and the eventual passage of the law at issue. Congressional hearings had found that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion . . . is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Moreover, the language of the congressional law differed from the state law in Stenberg. This law should be measured under the standards of Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It permitted women to obtain abortions prior to fetal viability, allowed for state regulation after viability with exceptions for women’s life and health, and affirmed the state’s legitimate interest throughout pregnancy in protecting the health of women and fetuses. This third interest is especially relevant. The new law “is not void for vagueness, does not impose an undue burden from any over breadth, and is not invalid on its face.” The law specifically applies only to vaginal deliveries in which individuals knowingly attempt to kill fetuses after certain “anatomical ‘land-marks’” have been crossed. Doctors of reasonable intelligence will know what the law prohibits. It is not designed to prohibit dilation and evacuation (D&E) procedures in which the fetus is removed in parts but only intact D&E procedures. Moreover, it does not punish accidental intact D&E procedures. In examining whether the law poses an “undue burden” on women seeking abortions, Kennedy notes that Congress thought that killing a fetus “just inches before completion of the birth process” would “coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.” The government has additional interests in “protecting the integrity and ethics of the medical profession.” Congress determined that “the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant,” that might, in turn lead women into “depression and loss of esteem.” The regulation would be unconstitutional if it “subject[ed] [women] to significant health risks,” but there is significant medical disagreement on this point, and “The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Moreover, “If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.” If the safety of non D&X alternatives arises in individual cases, “the proper means to consider [such] exceptions is by as-applied [rather than facial] challenges.”
J. Thomas and J. Scalia, concurring, note that they do not believe any of the Court’s jurisprudence relative to abortion is grounded in the Constitution.
J. Ginsburg, dissenting, argues that this decision departs from Planned Parenthood of Southeastern Pa. v. Casey. She feared that it “blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.” Abortion restrictions affect a woman’s control over her destiny and compromise their health. Lower courts called into question “facts” that Congress sought to establish through its investigations, including arguments that there were alternatives that were equally safe for maternal health. The law seems to prefer one arguably “brutal” method of abortion over another, but “Our obligation is to define the liberty of all, not to mandate our own moral code.” Majority reflections on women’s regret over abortion simply repeat antiabortion shibboleths. The lack of a health exception for the procedure “burdens all women for whom it is relevant.” The law thus departs from the respect for precedent that Casey recognized. The only “redemptive” element of the decision is its willingness to consider future as-applied challenges.