Perhaps the biggest problem with the words “partial-birth abortion” is that they have neither a precise legal definition nor an exact medical one. In 2000, the Supreme Court, in Stenberg v. Carhart, struck down a Nebraska ban on “partial-birth abortions” in part because of that problem. But in response to that decision, in 2003 the U.S. Congress opted to enact that same unconstitutional law, nearly unchanged, now criminalizing any abortion “in which a physician delivers an unborn child’s body until only the head remains inside the womb, punctures the back of the child’s skull with a Sharp instrument, and sucks the child’s brains out before completing delivery of the dead infant.”
The 5-4 majority in Stenberg had two problems with Nebraska’s attempt to ban the late-term procedure known as a D&X (“intact dilation and extraction”): They objected to the vagueness of the medical definition—which might sweep some far more common D&E procedures (“dilation and extraction”)—under the ban. The court also found that Nebraska’s failure to create an exception for cases in which the mother’s health was threatened was unconstitutionally burdensome. Congress solved for the vagueness problem by defining the objectionable procedure somewhat more narrowly. It solved for the lack of a health exception by adopting congressional "findings of facts” that asserted that this procedure is simply “never necessary to preserve the health of a woman.” Congress was rewarded for all this by the replacement of Sandra Day O’Connor, who opposed the ban, with Samuel Alito, who may not.
In theory, Congress’ efforts to overrule Supreme Court precedent, replace medical fact with medical wishful thinking, and usurp the court’s prerogative to interpret the Constitution might have caused something of a ruckus at oral argument today. But the new Roberts court is so minimalist in its desires, so humble in its aspirations, that almost half of its members hardly speak at all. Justice Clarence Thomas is sidelined with an illness (but will participate in deciding the case), and Justice Samuel Alito elects to adopt Thomas-like muteness. The usually voluble Justice Antonin Scalia settles for terse one-liners, thus leaving the court’s most liberal members, along with Justice Anthony Kennedy and Chief Justice John Roberts, to talk amongst themselves for two hours.
Wait, there’s one other person talking. For the first time in my eight years at the court, I watch as a spectator begins to shout, “Have you ever been a parent?” and something about Jesus and perishing, before he is tackled by court security and dragged out of the chambers. His screams can be heard for some time after he’s been removed. It’s quite distracting. I think from now on the court security guards should maybe carry Tasers.
The court today engages in close scrutiny of the textbook medical questions that plague this case: Is the banned procedure defined sufficiently narrowly? Is the congressional evidence that these procedures are never medically necessary credible, and how much deference is it owed? Is the abortion procedure in question significantly different from the one struck down in Stenberg?Is the procedure best differentiated from the common D&E by the degree of dilation required; the intent of the physician; the moment of fetal demise; or the “anatomical landmarks” or “spatial line” between a fetus that dies in the womb and out of the womb? Painstaking distinctions are drawn between “substantial medical authority” supporting the health exception and the “marginal safety” of permitting the procedure for some women. The realistic possibility of safe alternatives is explored. The transcripts can be found here and here. Audio is available here.
The larger constitutional disputes over the authority of the courts versus Congress are largely bypassed today, as are complicated matters of prior precedent and stare decisis. To be sure, there are some moments of high drama in the first argument, Gonzales v. Carhart, the appeal from the 8th Circuit. Justice John Paul Stevens quickly rebukes Solicitor General Paul Clement for describing the fetus in question as a “child.” Ruth Bader Ginsburg similarly forestalls his use of the word “infanticide.”
Stevens questions the congressional “findings of fact”—findings he characterizes as “clearly erroneous”—including the claim that the abortion procedure in question is currently taught at “no medical schools.” (Clement concedes that he doesn’t “know that’s correct.”) Justice Stephen Breyer makes it perfectly clear that “we are not talking about anyone being born and living. They are not going to.” Whether this particular procedure is used or another, these fetuses will not survive.
Clement does a characteristically great job of deflecting these concerns, but to the extent that his hopes rest on Kennedy this morning, he can’t manage to rouse the “Fiery Dragon Kennedy” who authored the synapse-melting dissent in Stenberg. In fact, neither side awakens the Kennedy they sought today. Abortion advocates, for their part, get almost no response in their efforts to get “Judicial Supremacist Kennedy” to come out to play. The justice pretty much joins his colleagues in preferring to focus on the tiny medical details rather than the big constitutional landscape.
Kennedy does suggest, in his questions, that the government’s notion of women in emergency situations seeking to file individual “as applied” challenges to the statute is unworkable; the abortion must take place within a matter of hours, and judges would require days to get up to speed. He seems to be consistently worried about removing something from a physician’s arsenal that may put either the woman at medical risk or the doctor in peril of liability.
Priscilla Smith represents Dr. Leroy Carhart, an abortion doctor who opposes the ban. Kennedy questions her closely on what it means that some hospitals won’t admit women for this procedure. When Smith is interrupted by the shrieking heckler, she finds it hard to regain her footing. She ably argues that Congress had only to follow the “blueprint” laid out in Stenberg if it truly wanted to draft a constitutional ban but, for the most part, she gets lost in more hyper-technical debate about the differing protocols for the D&E and D&X and the reasons a physician might choose to perform a D&X during a “vertex delivery.”
The second case of the morning, Gonzales v. Planned Parenthood, comes out of the 9th Circuit, and it proceeds pretty much along the same lines. Breyer seems to continue to refer to the Stenberg case as, alternatively Stenhart or Cathcart. The justices continue to parse complex “marginal” versus “significant” medical-risk analysis. Eve Gartner represents Planned Parenthood and she also underscores the argument that Congress ignored the high court’s “hallmarks” for a constitutional partial-birth abortion ban. Again, she is caught up in a swirling debate about vertex deliveries, the extraction of fetal legs, and the possibility of requiring physicians to alter their standard protocols.
A telling moment occurs toward the end of Gartner’s presentation when she allows herself to emote, to urge that this is a “very personal moral/religious decision” for a woman, often made “for very tragic reasons” over how she “wants her fetus to undergo demise.” She notes that, “Congress has legislated that for a woman.” The chief justice responds with the question: “If a woman can take into account the impact on the fetus” and its suffering, “why is that beyond the scope of things the Congress can take into account?”
It’s a good question. But the best evidence I can offer for why neither the courts nor the Congress should be able to trump the mother’s and doctor’s preferences about the safest way to terminate her pregnancy is just this: After 120 minutes of exquisitely detailed medical inquiry, the justices have proven beyond a reasonable doubt that they just are not doctors. They have tried valiantly to understand the medical testimony and to analyze the protocols. They struggle to weigh the risks of lethally injecting a fetus in the uterus. But that’s just not why they went to law school.
By the same token, six congressional hearings and dozens of witnesses have proven beyond a reasonable doubt that the United States Congress is not a body of doctors, either. Indeed, their ability to simply ignore inconvenient medical facts suggests that if they were doctors, they’d be rather rotten ones. If the justices are looking for the cleanest, easiest way out of this whole partial-birth abortion business, I would suggest that if institutional humility means anything at all, it means that when you can’t understand the medicine, you stay out of the operating room. When you find yourself lacking the skills and experience to define the fine line between the intent and outcomes of similar medical procedures, or to weigh the hazards arising from each, perhaps the most prudent thing to do is to leave it to those who do.