Something remarkable has happened over the past year: nothing.
Exactly one year ago today, the Supreme Court in Gonzales v. Carhart rejected a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003. Confronting “documented medical disagreement whether the Act’s prohibition [on partial-birth abortion] would ever impose significant health risks on women,” the five-justice majority ruled that such disagreement about health risks in particular circumstances did not warrant invalidating the act in its entirety. Instead, the Court virtually invited practitioners of partial-birth abortion and their allies to bring so-called as-applied challenges that would carve out from the Act’s scope any circumstances in which partial-birth abortion might be shown to be necessary to preserve the mother’s health. (See my essay “The Face-Off Over Partial-Birth Abortion” for a fuller discussion of the distinction between facial and as-applied challenges.)
In dissent, Justice Ginsburg predicted that these as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [Act’s] prohibition.” According to Ginsburg, “the record already includes hundreds and hundreds of pages of testimony identifying ‘discrete and well-defined instances’ in which recourse to an intact D&E [i.e., partial-birth abortion] would better protect the health of women with particular conditions.”
So how many as-applied challenges have been filed over the past year? Zero.
This fact is worth pondering, not only because the abortion industry had already compiled its best evidence of alleged health risks but also because it has long demonstrated its zeal to race to court on a moment’s notice. Why hasn’t it brought any as-applied challenges?
In a debate with me ten months ago, the Planned Parenthood attorney who presented oral argument in Gonzales v. Carhart offered successive makeshift explanations for the surprising inaction as of then. First, she contended that the as-applied challenges contemplated by the Court required that “a woman who has a serious medical need for an intact D&E abortion … just wait until the exact moment of that need, when she may in fact be hemorrhaging, [when] she may be hospitalized due to a systemic infection … [and] then file a lawsuit in federal court and wait for relief.”
Nice sound bite, perhaps, but manifestly untrue. As I pointed out, the proper plaintiff in as-applied actions is the abortionist, not the mother, as the penalties under the Act apply to him, not her. It’s quite clear from the Court’s ruling (and Ginsburg assumes as much in her dissent) that an abortionist who reasonably expects to face circumstances in his practice that he thinks call for partial-birth abortion to preserve the mother’s health can challenge the Act’s application to those circumstances. Indeed, the Court notes that even the Department of Justice “has acknowledged that preenforcement, as-applied challenges to the Act can be maintained.” And even if it weren’t clear, that wouldn’t typically stop the pro-abortion litigation juggernaut from striving to establish the point.
The Planned Parenthood attorney then shifted to another explanation, as she asserted that the two injunctions that had been put in place “in the cases that went to the Supreme Court . . . have not yet been lifted by the lower court.” But that explanation made no sense either. By reversing the rulings below, the Supreme Court swept away the injunctions; no mopping-up by the lower courts was necessary.
So, given the supposed need to “ward off serious, sometimes irremediable harm” to pregnant women, why haven’t Planned Parenthood and its allies pursued any as-applied challenges over the course of the past year?