Bench Memos

Feingold and Kagan on the Doe ‘Health’ Exception

This morning, Sen. Dianne Feinstein (D., Calif.) got Elena Kagan to confirm that she believes that “Roe and Doe require” that any state “regulation” of abortion protect the “health” of women seeking abortions — presumably indicating the understanding of Roe v. Wade and Doe v. Bolton that Kagan would apply from the bench.

This was an important signal for Kagan to send to abortion activists: She has reassured them, if reassurance was needed, that she’ll be for unlimited abortion rights and hostile to any state regulations. This means that Kagan would apply the Doe v. Bolton “health” definition to negate any state regulation of abortion — limits on tax dollars for abortion, parental notice or consent laws, informed consent laws, clinic safety regulations, etc. (Doe v. Bolton was the companion case to Roe v. Wade, and Roe says that the two decisions are to be “read together.”)

Doe defines “health” in abortion law as “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.”

So, whenever and wherever used in abortion law, “health” means “emotional well-being,” and it’s a trap door for any state regulation. A state regulation cannot be applied if “emotional well-being” of the patient — including any minor — might be affected by the regulation.

Although some have said that Doe did not intend to make this a constitutional definition of “health” in abortion law, several federal courts have said otherwise, and have even extended the sweep of the “health” definition. Whereas the original context in Doe suggested that the “health” definition might apply only to prohibitions of abortion after viability, some federal courts have extended the “health” definition to apply at any time of pregnancy and to invalidate any state regulation.

(It’s important to note that the bare five-member majority on the Court that upheld the federal partial-birth abortion prohibition in 2007, in Gonzales v. Carhart — Roberts, Kennedy, Scalia, Thomas and Alito — have not applied the “health” definition to invalidate state regulations.)

In the New Hampshire parental notice case Ayotte v. Planned Parenthood, which eventually ended up in the Supreme Court, the First Circuit applied the “health” exception to strike down New Hampshire’s parental notice law, stating “a statute regulating abortion must contain a health exception in order to survive constitutional challenge” — which is essentially what Elena Kagan told Senator Feinstein on Tuesday. The Supreme Court in Ayotte overturned the First Circuit and reinstated the law (without clarifying the “health” definition).

As the First Circuit’s opinion indicates, no state regulation of abortion can stand if the Doe definition of “health” is applied to state regulations.

There are significant problems with Kagan’s application of the Doe “health” definition to state regulations. Among the most important for the Court’s future stewardship as the nation’s abortion-control board is that the Doe “health” definition is a one-way rachet — it exclusively focuses on potential risks to “emotional well-being” from delaying abortion, and excludes any recognition of the risks — short-term or long-term — to women from abortion.

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