A Welcome Vote: Commentary from the Thomas More Society

The following commentary is from Paul Benjamin Linton, Special Counsel, Thomas More Society (Chicago, Illinois). Mr. Linton filed an amicus brief on behalf of the Thomas More Society in support of the Government in each of the two cases decided today.

The Supreme Courts narrow vote today upholding the federal Partial-Birth Abortion Ban Act is welcome, but neither supporters nor opponents of abortion should read too much into the Courts decision. Although the Act was upheld in this facial challenge, Justice Kennedys majority opinion clearly left the door open to a pre-enforcement, as-applied challenge. Whether such a challenge could be mounted successfully is doubtful, however. After three trials in three district courts (California, Nebraska and New York), with dozens of expert witnesses, hundreds of pages of exhibits and thousands of pages of testimony, the plaintiffs failed to establish any set of circumstancesactual or hypotheticalin which a partial-birth abortion procedure, as defined in the Act, would be the only appropriate abortion technique to preserve a womans health. Plaintiffs, in other words, never demonstrated that, in a given situation, an induction could not be performed, a conventional (dismemberment) D & E could not be performed and fetal demise could not be caused before beginning a partial-birth abortion procedure. The hypothetical nature of the plaintiffs challenge fully warranted the Courts reluctance to use the meat cleaver approach of using a facial challenge to strike down an Act which, in fact, may have no unconstitutional applications.

The vagueness and overbreadth challenges to the Act were also properly rejected. The Thomas More Society (Chicago, Illinois) submitted amicus briefs in both cases which included official abortion reporting data from six States (Indiana, Mississippi, South Carolina, South Dakota, Tennessee and Virginia) whose partial-birth abortion statutes, drafted with far less precision than the federal Act, were not challenged prior to the Supreme Courts decision in Stenberg v. Carhart (2000). That data revealed that the incidence of second-trimester abortion techniques (conventional D&Es and inductions) was not affected by the enactment of those statutes, thereby indicating that physicians performing abortions in those States understood what the statutes prohibited and, more importantly, what they did not prohibit.

In practical terms, the Courts decision upholding the Act is likely to have little effect on abortion practice. First, it is apparent (and undisputed) that a physician who causes fetal demise before beginning a partial-birth abortion is not subject to prosecution under the Act. Moreover, causing fetal death (by an intra-cardiac or intra-amniotic injection of digoxin or potassium chloride) generally involves little or no risk to the pregnant woman. Second, given the Courts interpretation of the scienter requirements of the Act (following the Solicitor Generals argument), it is questionable whether any physician who performs the procedure prohibited by the Act could be successfully prosecuted, as the district court judge in the Nebraska case (Richard Kopf) noted in his opinion striking down the Act. That is because the Government would have to prove, beyond a reasonable doubt, that the physician had the intent, at the outset of the procedure, to perform a partial-birth abortion. Proof that a partial-birth abortion procedure was performed, in and of itself, would not suffice.

Apart from the immediate issues at hand, it is doubtful that the Courts decision presages a retreat from either Planned Parenthood v. Casey or Roe v. Wade, as some of the shriller reactions to the decision (including Justice Ginsburgs dissent) suggest. Significantly, neither Chief Justice Roberts nor Justice Alito joined Justice Thomas concurrence in which he reiterated his view that the Courts abortion jurisprudence … has no basis in the Constitution. As things now stand, therefore, we know that only two Justices on the CourtJustices Scalia and Thomashave voted to overrule Roe v. Wade and Casey.

The most interesting, and perhaps most significant, part of Justice Kennedys opinion is Part V, in which the Court holds that the broad facial challenge rules applicable to First Amendment litigation simply have no application here (in the context of abortion regulation). Without resolving the ongoing debate as to whether the no set of circumstances rule of Salerno or the large fraction rule of Casey applies to facial challenges to statutes regulating abortion, the Court held that the plaintiffs had failed to meet their burden of showing, at a minimum, that the Act would be unconstitutional in a large fraction of relevant cases. Indeed, one page earlier, the Court said that these facial attacks should not have been entertained in the first instance. The Courts decisions today in Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, Inc., together with the Courts unanimous decision in Ayotte v. Planned Parenthood of Northern New England last year, provide appropriate and much needed jurisprudential limitations on challenges to abortion laws, Carhart holding that facial challenges should not be entertained unless (at a minimum) the challenged law would be unconstitutional in a large fraction of the cases to which it applies, and Ayotte holding that injunctive relief against an abortion statute should be no broader than that necessary to remedy the constitutional injury. The combination of imposing a more rigorous standard for bringing a facial challenge (Carhart) and the insistence that the relief granted be no broader than necessary (Ayotte) may substantially reduce the incidence of open-ended, hypothetical lawsuits based on remote scenarios that may never take place and the invalidation, in whole or in part, of statutes that are constitutional in most of their applications.