Bench Memos

NRO’s home for judicial news and analysis.

Summary of Partial-Birth Ruling


Here’s my selective summary of the ruling.


Justice Kennedy’s majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito, states:


1.  We apply the balance struck in Planned Parenthood v. Casey.  (Slip op. at 14-16.)


2.  The federal Partial-Birth Abortion Ban Act of 2003 is not void for vagueness, does not impose an undue burden, and is not facially invalid.


            a.  The Act is not unconstitutionally vague.  (Slip op. at 18-20.)  It provides doctors of ordinary intelligence a reasonable opportunity to know what is prohibited, and its intent requirement further alleviates any vagueness concerns and prevents against arbitrary enforcement.


            b.  The Act does not impose an undue burden.  (Slip op. at 20-26.)  Its reach is limited to physicians who carry out the intact D&E after intending at the outset both to deliver the fetus until its head lodges in the cervix and to pierce or crush the fetal skull.  It does not apply to D&Es in which the doctor intends from the outset to remove the fetus in pieces.  The Act differs in this respect from the Nebraska statute struck down in Stenberg v. Carhart.  The identification of specific anatomical landmarks and the inclusion of an overt-act requirement also distinguish the Act from the Nebraska statute.  Also, the canon of constitutional avoidance, which “has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion,” also calls for us to give a statute a reasonable construction that would save it from unconstitutionality.


            c.  The Act does not on its face impose a substantial obstacle to late-term, but pre-viability, abortions.    (Slip op. at 26-37.)  The Act expresses respect for the dignity of human life and advances the interest in protecting the integrity of the medical profession.  These are legitimate objectives under CaseyCasey’s requirement of a health exception cannot be tantamount to allowing a doctor to choose the abortion method he prefers.  “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others.”


            The Act’s ban on abortions that involve partial delivery of a living fetus furthers the government’s legitimate objectives.  The government has an interest in countering the likelihood that some doctors may prefer not to disclose precise details of intact D&E and may thereby cause greater grief to the “mother who comes to regret her choice to abort.”


            Under precedents that we assume to be controlling, the Act would be unconstitutional if it subjected women to significant health risks.  There is documented medical disagreement on this question.  In the face of this uncertainty and given the availability of other abortion procedures that are considered to be safe alternatives, the Court’s precedents instruct that the Act survives a facial attack.   


3.  These facial attacks should not have been entertained in the first instance.  The proper means to consider exceptions is by as-applied challenge.  (Slip op. at 37-38.)


On initial read, this opinion strikes me as a significant victory.  In particular, it appears that the Court is disinclined to continue to have special ad hoc rules that uniquely favor those who challenge abortion regulations.


I will soon have posts on Justice Thomas’s concurrence (joined by Justice Scalia) and on Justice Ginsburg’s dissent (joined by Justices Stevens, Breyer, and Souter).

Tags: Whelan


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