The Justice Department, in its first formal filing in court interpreting the Supreme Court’s April 18 ruling upholding a federal ban on an abortion procedure, told a federal appeals court on Thursday that the ruling sweeps so broadly that challengers should not be allowed to pursue claims that the Supreme Court did not resolve. The government’s nine-page supplemental letter brief in National Abortion Federation v. Gonzales (Second Circuit docket 04-5201) can be found here.
In its most significant argument to the Second Circuit Court, the Department suggested that the opponents of the 2003 Partial-Birth Abortion Ban Act be barred from bringing any new case contending that the ban violates women’s constitutional right to equality. That is an argument that got the implied support of Justice Ruth Bader Ginsburg in her dissent from the April 18 ruling in the case of Gonzales v. Carhart (06-380) — support that might have led abortion rights groups to try that theory as an alternative way of contesting the ban now that their facial challenge has failed on a due process complaint.
Although the Carhart decision did not address the equal protection argument, the Department contended: “The Supreme Court’s decision in Carhart that the Act does not violate the due process clause of the Fifth Amendment does not leave any room for plaintiffs to turn around and argue that the Act violates the equal protection component of the same clause.” Moreover, it argued, the Supreme Court has always based the right to abortion on due process, not equal protection, principles.
But, the brief went on, the equal protecdtion claim “is insubstantial on its own terms….Because men cannot have abortions,…men and women are not similarly situated, and the Act’s regulation of a particular abortion procedure cannot violate the equal protection rights of women.” Thus, it argued, the existing lawsuit must be ordered dismissed “with prejudice” — that is, barring the claim assertion’s in an amended lawsuit or a new one.
The brief also contended that the Carhart decision directly undercuts all other claims that the challengers had made to the 2003 ban — claims that it was invalid because it lacks an exception when the procedure was medically necessary, because the ban does not serve a “legitimate state interest,” and because its exception to preserve a woman’s life was inadequate.
While the brief conceded that the Carhart decision leaves open possible as-applied challenges to the ban, it said the Court had made any such challenge to the scope of the life exception unnecessary because it had found that the ban would not “bar the procedure in any life-threatening case.”
The brief was filed in response to an order of the Second Circuit panel that earlier had struck down the 2003 ban, to get the parties’ views on what to do with this lawsuit in the wake of the Carhart ruling. (The Carhart decision involved rulings by the Eighth and Ninth Circuits; the Second Circuit case was not before the Justices.)
The National Abortion Federation filed its own letter brief in the Second Circuit case, but limited its response to two paragraphs. The Carhart decision, the NAF brief said, “precludes relief on the facial challenge presented to the district court,” so the injunction issued by the District Court against the law’s enforcement should be vacated and the case should be dismissed. The NAF brief can be found here
The District Court, in blocking enforcement of the ban, and the Second Circuit in upholding that injunction, had ruled against the ban only on the basis of its lack of a health exception. They did not resolve any other arguments made by NAF.
The NAF brief filed Thursday did not seek to preserve any facial challenges not ruled upon in Carhart by the Supreme Court, or in this case by the the Circuit Court or the District Court, but neither did it rule out an attempt to press other arguments when the case returns to the District Court, or in a new lawsuit. It did not suggest that the case should be dismissed “with prejudice.”
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