Gonzales v. Carhart

550 U.S. 124 (2007)
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The Respondents, doctors who performed second-trimester abortions, brought suit challenging the constitutionality of the federal Partial Birth Abortion Ban Act of 2003 (the Act). The Act banned second trimester abortions using the “intact Dilation & Extraction” (intact D&E) method in which the doctor removed the fetus intact, or largely intact, rather than breaking the fetus into smaller pieces as was done in the standard D&E method.

In enacting the legislation, Congress found that a “moral, medical and ethical consensus exist[ed],” which held that partial birth abortions constituted a “gruesome and inhumane procedure that [was] never medically necessary and should be prohibited.”

The District Court granted a permanent injunction enjoining enforcement of the Act, except in those cases in which the viability of the fetus was beyond dispute. The Court of Appeals affirmed. The Supreme Court granted leave to hear the appeal.

The Court held that the Act was not void for vagueness; that it did not impose an undue burden from any overbreadth; and that it was not invalid on its face. The Act punished "knowingly perform[ing]" a "partial-birth abortion” and defined what constituted an unlawful partial-birth abortion in explicit, unambiguous terms. The Court concluded that the Act set forth clear guidelines as to prohibited conduct and provided objective criteria to evaluate whether a doctor had performed a prohibited procedure. As a result, doctors performing D&E would know that if they did not deliver a living fetus to the anatomical landmarks indicated in the Act, they would not face criminal liability. In deciding the issue, the Court analyzed and compared the federal law to the statute in Stenberg v. Carhart, 530 U.S. 914 (2000), which prohibited both intact and standard D&E, and was held to be unconstitutional due to its ambiguity.

The Court further determined that the Act’s restrictions on second-trimester abortions were not so broad as to constitute an unconstitutional undue burden on the right of a woman to terminate her pregnancy. The Act only prohibited intact D&E and did not prohibit the standard D&E procedure in which the fetus was removed in parts. It also included an intent requirement, which ensured doctors could not be prosecuted under the law unless they had the intent, at the outset, to perform an intact D&E. Thus, a doctor who had inadvertently performed an intact D&E would not be subject to criminal charges. The Court declared that interpreting the Act so that it did not prohibit standard D&E was the most reasonable reading and understanding of its terms

Reiterating Planned Parenthood v Casey, 505 U.S. 833 (1992), the Court stated that the Act would be unconstitutional "if its purpose or effect [was] to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attain[ed] viability." The Court, however, held that the Act did not impose this kind of substantial obstacle to late-term (second trimester), previability abortions.

The Court held that when the State had a rational basis to act, and when it did not impose an undue burden, the State “may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” It supported Congress’ determination that the proscribed method of abortion in the Act had a “disturbing similarity to the killing of a newborn infant” and “require[d] specific regulation because it implicate[d] additional ethical and moral concerns that justify a special prohibition”

Finally, the Court held that the Act’s prohibition on intact D&E did not require a health exception. It explained that the Act was not invalid on its face, even where uncertainty existed over whether the prohibited procedure was ever necessary to preserve the woman’s health; this was due to the availability of other safe alternative abortion procedures. It also stated that “considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.”

“We assume the following principles for the purposes of this opinion. Before viability, a State ‘may not prohibit any woman from making the ultimate decision to terminate her pregnancy.’ 505 U.S., at 879, 112 S.Ct. 2791 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation's ‘purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ Id., at 878, 112 S.Ct. 2791. On the other hand, ‘[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose.’ Id., at 877, 112 S.Ct. 2791. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar.” 550 U.S., pp. 1626 -1627.

“Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional ‘if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’ Casey, 505 U.S., at 878, 112 S.Ct. 2791 (plurality opinion). The abortions affected by the Act's regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity.” 550 U.S., p. 1632.

“Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had ‘undervalue[d] the State's interest in potential life.’ 505 U.S., at 873, 112 S.Ct. 2791 (plurality opinion); see also id., at 871, 112 S.Ct. 2791. The plurality opinion indicated ‘[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.’ Id., at 874, 112 S.Ct. 2791. This was not an idle assertion. The three premises of Casey must coexist. See id., at 846, 112 S.Ct. 2791 (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” 550 U.S., p. 1633.

“The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D & E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant,’ Congressional Findings (14)(L), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with ‘draw[ing] a bright line that clearly distinguishes abortion and infanticide.’ Congressional Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's ‘fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary
euthanasia.’ 521 U.S., at 732-735, and n. 23, 117 S.Ct. 2258.” 550 U.S., pp. 1633 - 1634.

“It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.” 550 U.S., p. 1634.

“The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D & E. One District Court found D & E to have extremely low rates of medical complications. Planned Parenthood, supra, at 1000, 112 S.Ct. 2791. Another indicated D & E was ‘generally the safest method of abortion during the second trimester.’ Carhart, 331 F.Supp.2d, at 1031; see also Nat. Abortion Federation, supra, at 467-468 (explaining that ‘[e]xperts testifying for both sides’ agreed D & E was safe). In addition the Act's prohibition only applies to the delivery of ‘a living fetus.’ 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV). 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.” 550 U.S., p. 1637.

“A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.” 550 U.S., p. 1638.

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