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The Supreme Court's Partial Birth Anxiety

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Forbes the Switcher

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4/25/00 4:00 p.m.
The Supreme Court's Partial Birth Anxiety
Did the High Court really mean what it said, back in 1992, about the regulation of abortion?

By Todd Gaziano, Senior Fellow in Legal Studies, The Heritage Foundation

ne of the problems the Supreme Court faces when it takes a controversial issue from the political branches of government and makes up constitutional tests that have no grounding in history or the text of the Constitution is that it is forced to revisit the issue with each new political development. Although the Court has avoided taking a major case on abortion in the past eight years, the passage of partial-birth abortion bans in 30 states, and the conflicting decisions over their constitutionality, forced a reluctant Supreme Court to hear Stenberg v. Carhart in order to resolve the conflict.

In today’s argument regarding Nebraska’s partial-birth abortion law, the two swing Justices, O’Connor and Kennedy, had reason to be anxious about what they had wrought. In 1992, they joined the four liberal justices (which even then included David Souter) in reaffirming Roe v. Wade, but they relaxed the standard somewhat for finding a state’s regulation of abortion to be constitutional. In that decision (Planned Parenthood v. Casey), the Court held that a state could regulate abortion procedures as long as it did not "unduly burden" a woman’s fundamental abortion "right."

The American Medical Association has said that there is NO situation in which "intact dilation and extraction" (the medical term for partial-birth abortion) is the only appropriate way to perform an abortion. So Nebraska sought to ban this procedure where "a living unborn child" is partially delivered feet first but the head is pierced and his or her brains are sucked out before the child is removed. If this particular procedure is never medically necessary, Nebraska asks how its ban could unduly burden a woman’s right to an abortion. To a number of activist judges, where there is a will to find an undue burden, there is a way. To them, any hypothetical concern creates a burden, and any burden is undue. The critical question is whether O’Connor and Kennedy are in this camp or whether they really meant what they said in 1992.

The atmosphere at the Court was appropriately sedate this morning, and the central arguments were overlaid by a thick mixture of semantics, medical jargon, and obscure legal doctrines. In the end, Justice Kennedy did not betray his thoughts appreciably, but he seemed skeptical of the abortionist’s position that the legislature had no authority whatsoever to define which medical procedures are medically necessary or unnecessary. On the other hand, Justice O’Connor provided some reason for Nebraska to worry that she would provide the necessary fifth vote to strike down the law. O’Connor seemed concerned that the Nebraska statute did not define the banned procedure with sufficient clarity to distinguish intact d/x abortions from certain partial-birth abortions in which the fetus is partially delivered and then removed in pieces. O’Connor seemed unsure whether the statute would be constitutional if it included this latter subset of abortions.

Justice Scalia argued that Nebraska should be allowed to apply and interpret its statute to remove any possible ambiguity. Normally, states are allowed to narrow the scope of an ambiguous statute, particularly where there is some constitutional doubt about a broader construction. (Law nerds will appreciate the distinction between a "facial" challenge to a statute, where the challenger has the heightened burden to show that no reasonable construction of the statute is constitutional, and an "as applied" challenge that involves a lesser showing.) Chief Justice Rehnquist invoked a related legal doctrine, in which the courts are supposed to adopt or proscribe the interpretation of a statute that avoids a constitutional difficulty. Stenberg suggested that the Supreme Court of the United States could use a rare procedure to "certify" a question to the Supreme Court of Nebraska before it issued a ruling on the merits.

If a question is certified, we would probably know about it in a few weeks, but I would not count on that being done in this case. More likely, we will see an opinion from the High Court in the last few days of June. The vote will probably be 5-4, but I am not placing odds on the outcome. Any likely outcome, however, will not automatically resolve the challenges to the 29 other states’ statutes, even if it provides some guidance. And if Nebraska’s statute is deemed vague, the states may try to amend their statutes to provide the level of clarity called for in the Stenberg decision. In short, expect litigation for years to come. Will the Court ever recognize that something is wrong with this picture?

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