Prudence, Abortion Prohibitions, and the Roberts Court
By Clarke D. Forsythe
Senior Councel, Americans United for Life
Since the United States Supreme Court (USSC) issued its decisions in Roe v. Wade1 and Doe v. Bolton2 in 1973, abortion prohibitions have been legally and politically off-limits in the states. Several attempts have been made to enact abortion prohibitions -- by Rhode Island in 1973, Utah in 1991, Louisiana in 1991, and Guam in 1991 -- and all have been struck down in the courts and failed.3 Other attempts have been made to induce the USSC to reconsider Roe, and, so far, they too have failed. For example, in 2005, a motion by the original "Jane Roe," Norma McCorvey, requested that the USSC revisit Roe; it failed, with the Court refusing to even hear the case.4
Thus, under current USSC precedent, states are significantly "ham-strung" in enacting prohibitions on abortion generally. Over the last few years, however, a number of states have debated and considered a variety of abortion prohibitions (or bans), including: prohibitions before viability, prohibitions after viability, prohibitions on partial-birth abortions, and delayed enforcement laws.
Prohibitions Before Viability
In Roe v. Wade, the Supreme Court held that the states may not prohibit any abortions before viability,5 a holding expressly reaffirmed by the Court in the 1992 case Planned Parenthood v. Casey.6 Consequently, abortions before viability may be performed for any reason. This holding remains intact, despite litigation surrounding subsequent attempts by states to ban abortions before viability and, more significantly, the highly-charged debate over partial-birth abortion.
Prohibitions After Viability
Despite ill-informed claims to the contrary, a careful examination of Roe v. Wade and its companion case, Doe v. Bolton, shows that abortions may be performed for virtually any reason after viability.7 In Roe, the Court held that after viability "the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."8 In Doe v. Bolton, the Court defined the health exception in an unlimited fashion:
[T]he medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health.9
Given this broad definition of "health," which includes psychological and familial factors as well as physical ones, it is clear that under Roe and Doe virtually any woman who wants to have an abortion after viability may obtain one. Thus, it is accurate to say that, unless and until the Supreme Court reviews and upholds a post-viability prohibition, abortions are legal throughout all nine months of pregnancy.
However, in Gonzales v. Carhart,10 discussed infra, the Court indicated that laws attempting to limit post-viability abortions by restricting the health exception can be valid (e.g., limiting such abortions to significant threats to the mother's physical health).11
In Planned Parenthood v. Casey,12 the Court quoted the language from Roe regarding the state's authority to prohibit post-viability abortions, but did not cite the expansive health language from Doe. The Pennsylvania Abortion Control Act, the subject of the numerous legal challenges decided in Planned Parenthood v. Casey, contains a post-viability prohibition with a very limited physical-health exception, but this provision of the law was not challenged in Casey.
The Court, however, did uphold the validity of the narrow medical emergency exception in the Pennsylvania law (the presence of the medical emergency excuses compliance with the informed consent, 24-hour reflection period, and parental consent provisions of the Abortion Control Act). This may suggest that similar language in a post-viability prohibition would pass constitutional muster.
Finally, the Court noted that it is only in "rare circumstances in which the pregnancy is itself a danger to [a woman's] own life or health," and stated that "a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." Whether this language means that states may prohibit abortions after viability remains to be decided. The lower courts are divided on this question. Moreover, the impact of the Supreme Court's 2007 decision in Gonzales v. Carhart, affirming the federal ban on partial-birth abortion without a blanket health exception, remains to be seen.
To summarize, under Roe and Doe abortions may be performed for any reason before viability, and for virtually any reason after viability. States are not encouraged, at this time, to pursue post-viability prohibitions.
In addition, consideration should be given to the prudential question whether a post-viability prohibition will serve to reinforce an artificial biological demarcation (viability) that has no relation to the humanity of the unborn child without significantly reducing abortions, and whether any gain from a post-viability prohibition is better served by a prohibition on partial-birth abortion.
Partial-Birth Abortion
In 2000 in Stenberg v. Carhart,13 the Supreme Court reaffirmed Roe and Casey and, by a 5-4 vote, struck down the partial-birth abortion prohibitions of Nebraska and 29 other states. The majority held that the Nebraska law at issue was unconstitutional because it lacked an exception to protect the woman's health and because it imposed an undue burden on a woman's ability to choose a dilation and extraction (D&E) abortion, the most common method of abortion after the first trimester,14 before or after viability.15
Then in November 2003, President Bush signed the federal Partial Birth Abortion Ban Act of 2003, outlawing the gruesome procedure. That law was immediately challenged by Planned Parenthood, the American Civil Liberties Union (ACLU), and others, and enjoined (pending the outcome of litigation) by three federal district courts. Two of the three cases were appealed to the USSC.
On April 18, 2007, the USSC issued its groundbreaking decision in Gonzales v. Carhart,16 upholding the federal partial-birth abortion ban. While the Court distinguished the federal ban from the state ban at issue in Stemberg, the Court in Gonzales effectively threw out Stenberg and restored the guidelines set forth in Casey that are more deferential to state legislation. Because there were other alternative methods for late-term abortions, the Court ruled that the federal ban did not require a health exception. The Court also narrowed the unlimited health exception laid out in Doe v. Bolton to a focus on "significant health risks" -- effectively rejecting the contention that an unlimited emotional health exception is required for every abortion regulation.
With the Court's approval of the federal partial-birth abortion ban in 2007, state passage of partial-birth abortion prohibitions in 2008 is highly recommended.
Delayed Enforcement Laws
In 2006 and 2007, Louisiana, Mississippi, and North Dakota passed abortion prohibitions which delay enforcement until such time as Roe v. Wade is overturned. Abortion prohibitions were introduced in several other states in 2006 and 2007. Other states contemplating delayed enforcement laws must take into account several important legal and practical considerations.
As a standard text on statutory construction provides, "the power to enact laws includes the power to fix a future effective date…. A statute may take effect upon the happening of a contingency, such as the passage of a law in another jurisdiction, a vote of the people, or the passage of a constitutional amendment."17 There are two caveats to this general rule. First, this power is determined by state law and must be verified in each state. Second, while the legislative authority to postpone an effective date to a future contingency seems fairly well established, the "abortion distortion factor" of federal constitutional law should never be taken for granted. In other words, a federal court might hold that even the threat of a future effective date has an unconstitutionally chilling effect on abortion today.
Assuming the legislature has the authority to postpone an effective date, a number of factors must be considered. First, vagueness in the statement of the future contingency should be avoided. If a future effective date is conditioned upon the Supreme Court overturning Roe v. Wade, does the Supreme Court have to specifically or uncategorically overrule Roe for the delayed enforcement provision to become effective? Second, consideration should be given to the relative expenditure of political resources to enact an abortion prohibition now or sometime in the future. Third, consideration should be given to what other laws might be enacted during the legislative session that will be enforceable now and have a positive impact in reducing abortion rates in the state by, for example, protecting women from the negative health consequences of abortions, protecting minors and parental rights through parental involvement laws, and protecting unborn victims of violence. All these factors should be weighed in the balance in considering an abortion prohibition with a delayed enforcement date in 2008.
The Future of Abortion Prohibitions
Future changes in the membership of the USSC make it prudent at some future time to attempt another test case, but as of September 2007, the Court still included five justices -- Stevens, Ginsburg, Breyer, Souter, and Kennedy -- who strongly support Roe. They made their views clear in 2000 in Stenberg v. Carhart and again in February 2005 by refusing to hear the McCorvey case. The Court's decision in Ayotte v. Planned Parenthood in January 2006 cast no additional light on the position of the current justices,18 and Kennedy's majority opinion in Gonzales may only be a reflection of his abhorrence to the partial-birth abortion procedure.
Thus, only with a retirement of one of those justices -- and replacement with a new justice -- would consideration of another test case be worthwhile. Any such test case would have to consider the unknown views of any new justices.
Legislators should know that it is not possible to force the Court to take any particular case, and it is not necessary to pass a prohibition bill to spark a test case and review of Roe v. Wade; the issue is not the right bill but the right justices. The Court reexamined Roe in Akron, Webster, and Casey, though none of those cases involved an abortion prohibition. It would be advisable to seek a reexamination of Roe (when a sympathetic majority exists) with any statute that arguably conflicts with Roe, asking the Court to broadly return the issue to the people, without having to ask the Court to specifically approve the constitutionality of specific prohibitions. In addition, the issue is Roe itself, not any particular application of Roe. Other national and state implications should also be considered in examining the prudence of an abortion prohibition bill before the 2008 elections.
Accordingly, given the majority on the USSC in the fall of 2007 and considering limited time and resources, it would be advisable in 2008 to consider other legislation that has a greater likelihood of having a positive impact in reducing abortion, protecting women, protecting minors, and/or protecting unborn children.19 And that can only happen if the legislation is ultimately upheld in the courts and actually enforced.
Endnotes
1 410 U.S. 113 (1973).
2 410 U.S. 179 (1973).
3 Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973), aff'd, 482 F.2d 156 (1st Cir. 1973), cert. denied, 416 U.S. 993 (1973); Ada v. Guam Soc. of Obstetricians & Gynecologists, cert. denied, 506 U.S. 1011 (1992); Edwards v. Sojourner T., cert. denied, 507 U.S. 972 (1993).
4 McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 543 U.S. 1154 (2005). In October 2005, the Court also left standing a lower court decision requiring Missouri to transport an inmate for an abortion. The Court refused to stay the order of a district judge requiring that a Missouri prison transport an inmate for an abortion. Crawford v. Roe, No. 05-A-333 (U.S. October 17, 2005). A challenge to the prison policy is pending before the Eighth Circuit. Another case asking the Supreme Court to overrule Roe, involving Sandra Cano, the "Jane Doe" from Doe v. Bolton, is also pending before the Supreme Court. Cano v. Baker, 435 F.3d 1337 (11th Cir. 2006), cert. denied, 127 S. Ct. 387 (2006).
5 Roe, 410 U.S. at 164-65.
6 505 U.S. 833, 846 (1992) ("Before viability, the State's interests are not strong enough to support a prohibition of abortion."). Id. at 879 ("Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.")
7 The Supreme Court, however, has never directly reviewed the constitutionality of a post-viability abortion ban.
8 Roe, 410 U.S. at 164-65.
9 Doe, 410 U.S. at 179, 192 (citing United States v. Vuitch, 402 U.S. 62 (1971)).
10 127 S. Ct. 1610 (2007).
11 In Gonzales, Justice Kennedy, writing for the majority of the court, framed the health issue as whether a woman would face "significant health risks," thereby impliedly narrowing the Doe "health" definition.
12 505 U.S. 833 (1992).
13 530 U.S. 914 (2000).
14 This method involves the dismemberment of the unborn child in the womb and the subsequent extraction of the "pieces" of the dead child.
15 Id. at 930 ("We conclude that it does for at least two independent reasons. First, the law lacks any exception ‘for the preservation of the…health of the mother'…. Second, it ‘imposes an undue burden on a woman's ability' to choose a D & E abortion, thereby unduly burdening the right to choose abortion itself.").
16 127 S. Ct. 1610 (2007).
17 Sands, Sutherland's Statutory Construction sec. 33.07, at 17 (5th Ed.).
18 Planned Parenthood v. Heed, 296 F.Supp.2d 59 (D. N.H. 2003), aff'd, 390 F.3d 53 (1st Cir. 2004) (holding state parental notice statute unconstitutional for lack of Doe health exception, applying "fraction" test of Casey), cert. granted sub. nom., Ayotte v. Planned Parenthood, 544 U.S. 1048 (2005). On January 18, 2006, the Court reversed the lower courts' decision to strike down New Hampshire's parental notice law in its entirety and remanded the case for future consideration. Ayotte v. Planned Parenthood, 126 S.Ct. 961 (2006).
19 See generally, E.Bachiochi, ed., The Cost of Choice: Women Evaluate the Impact of Abortion (2004).