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Whether Congress’s Partial-Birth Abortion Ban Act is constitutional. Specifically, whether the Act places an “undue burden” on abortion-seekers, based on holdings from Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
There is a method of abortion known as “intact dilation and extraction,” and it is typically performed during the second trimester of a pregnancy. The objective is to remove the unborn child from the womb in its entirety, rather than ripping it to pieces first, which is typical in a similar procedure known simply as “dilation and evacuation.”
To remove the unborn in its entirety in the “intact dilation and extraction” method, the abortion doctor first opens the cervix two to five centimeters to partially extract the living, unborn child. This is often too narrow of a passage for the head of the unborn, however, so the abortionist pulls the head toward the cervical opening and then either crushes the skull with forceps or cuts a hole in its head, inserts a tube, and sucks out the child’s brain. The collapsed skull and the rest of the body is then removed from the womb.
A nurse who witnessed the procedure described it before the Senate Judiciary Committee:
“The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brain out. Now the baby went completely limp.”
In 2003 Congress passed the Partial-Birth Abortion Ban Act that prohibited this method of abortion at any time during the pregnancy. It found that in no cases was this method necessary to advance the health of the mother, and that there was a “moral, medical, and ethical consensus that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary.”
The Court Below
Three plaintiffs sued in district courts. Planned Parenthood and San Francisco sought an injunction in the U.S. District Court, N.D., in California. The National Abortion Federation similarly sued to overturn the law in the U.S. District Court, S.D., in New York. Leroy Carhart, M.D., also sued in the U.S. District Court in Nebraska. All three courts ruled the Act unconstitutional, holding that partial-birth abortion is a protected right. See the opinions here:
Planned Parenthood Federation of America v. Ashcroft, 320 F. Supp.2d 957 (N.D. Cal., 2004)
National Abortion Federation v. Ashcroft, 330 F. Supp.2d 436 (S.D, N.Y., 2004)
Carhart v. Ashcroft, 331 F. Supp.2d 805 (Neb., 2004)
The government appealed the rulings, taking the cases to the Ninth, Second, and Eighth circuit courts, respectively. All three circuit courts affirmed the lower court rulings. See the opinions here:
Planned Parenthood Federation v. Gonzales, 435 F.3d 1163 (9th Cir., 2006)
National Abortion Federation v. Ashcroft v. Gonzales, No. 04-5201-CV (2d Cir., 2006)
Carhart v. Gonzales, 413 F.3d 791 (8th Cir., 2005)
Attorney General Gonzales petitioned the Supreme Court to review the 8th Circuit decision, to which it agreed. It took the case together with Gonzales v. Planned Parenthood Federation of America, Inc., No. 05-1382 (2007) on certiorari for the 9th Circuit.
Question before the Supreme Court
“Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.”
CCJ filed an amicus curiae brief in support of Gonzales
The decision of the 9th Circuit should be reversed, and the Partial-Birth Abortion Ban Act of 2003 upheld. First, the Act rests on the Commerce Clause, and although Congress acted beyond the original understanding of that clause, the Act is a valid exercise of that authority as currently viewed by a majority of this Court. Second, because the federal courts have through the 14th Amendment gained jurisdiction in ruling on state laws affecting abortion rights as demonstrated in past cases, the legislative powers of Congress must be coextensive with that judicial power. Third, Congress should be given great deal of deference in legislatively defining the parameters of the right the Court has recognized.
The Act forbids any physician “in or affecting interstate or foreign commerce” from knowingly performing a partial-birth abortion. Congress indeed has the power to regulate interstate commerce, but an abortion is not commerce at all, much less interstate commerce. Banning gruesome methods of abortion is a police power, which belongs to the states. Nonetheless, existing precedent supports a much broader view of the Commerce Clause authority of Congress, which the Supreme Court has long recognized. In accordance with the reasoning in Wickard v. Filburn (1942), the economic transactions between women and doctors, in the aggregate, qualifies as a “substantial effect” on interstate commerce, opening the door for congressional regulation. Also, widespread abortions affect interstate commerce by eliminating future economic actors—that is, people—and such eliminations have great influence on diaper sales, school supplies, college tuition, etc., that might otherwise occur but for abortion.
Next, although this Act bears on matters of moral consequence, traditionally a state police power, Congress has exercised police powers through the Fourteenth Amendment in the past, and the Supreme Court has upheld such action. Congress protected minorities from state action through the Equal Protection Clause, for example, as seen in the Civil Rights cases. Here, not only can Congress similarly exercise such police powers in protecting the innocent, but the states themselves have similarly passed partial-birth abortion bans in efforts to protect the innocent under a more traditional understanding of that power as well. Regardless of whether it is most properly a state or federal power, abortion regulation has long been within the purview of the federal courts, and thus should be within the purview of the federal legislature. Coextensive judicial and legislative power has long been a political axiom in American constitutionalism. Alexander Hamilton wrote in Federalist No. 80 of “the propriety of the judicial power of government being coextensive with its legislative,” and Chief Justice Marshall seconded in Cohens v. Virginia (1821), writing, “the judicial power of every well constituted government must be co-extensive with the legislative.” If Congress makes laws, the judiciary must have the authority to judge whether those laws are constitutional in cases and controversies. Conversely, if the federal judiciary has authority to rule on certain rights cases, it must be within the power of the legislative branch to legislate regarding those same rights on precisely the same grounds as those established by the courts.
Third, Congress has the authority to demarcate the limits and fill-out the rights the Court has identified or protected, and it should be given great deference in doing so. There have long been accepted limits to abortion, in both time and method. Nothing in Roe v. Wade or any other precedent, for example, protects the right of the woman to perform an abortion up to the time of childbirth. “It would be homicide,” as even Jane Roe’s counsel noted in 1973. Congress can similarly demarcate limits to the method of abortions for reasons such as safeguarding the health of the pregnant woman or out of concern for the unborn, all without violating the limited right.
To demonstrate Congress’s authority to fill-out or establish regulations regarding living things, it can be noted that Congress has the authority to protect endangered animals, even their unborn. So there is no need to argue whether fetuses are human to determine Congresses authority—even if human fetuses are considered equivalent to the fetuses of animals, Congress has the authority to protect them. If one considers them human, Congress can protect them just as it protects the rights of the least deserving: violent convicted criminals and enemy combatants, for example, have been afforded protections from cruel or unusual punishment, or otherwise have had protected a “minimum standard of dignity.” On the hierarchy of those deserving such protections, we must find a place for the innocent and worthy unborn human life.
Similar to CCJ’s argument, the Court ruled that Congress indeed had the authority to ban partial-birth abortions in keeping with judicial precedent. The ban was not too “vague,” as Carhart had argued; it fit the state interest of protecting unborn fetuses; and it did not create an “undue burden” on the abortion-seeker.
Justice Thomas’s opinion went further, not only agreeing with the majority opinion but writing that there is no constitutional basis for the Court’s previous decisions that had sanctioned abortion. Also, although CCJ had argued that the ban was a permissible exercise of Congress’s power under the Commerce Clause, Thomas noted that “whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. … it is outside the question presented. …”