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Abortion on the Horizon

Although it won't topple Roe v. Wade, Gonzales v. Carhart is this year's abortion case to watch.

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THE SEASON OF ABORTION LITIGATION is in full bloom. South Dakota's passage of a bill banning all abortions has captured most of the headlines, and Mississippi is considering similar legislation. Meanwhile, the Supreme Court has quietly decided two abortion cases this term--the first dealing with the process of invalidating abortion statutes that are unconstitutional in the case of medical emergencies; the second involving whether abortion protesters have violated the RICO Act. More significant, the Court granted certiorari last month in what may be the most momentous abortion case in more than a decade: Gonzales v. Carhart. Gonzales involves a constitutional challenge to the Partial-Birth Abortion Ban Act of 2003, which outlaws partial-birth abortions throughout the country. While Roe v. Wade will survive Gonzales, the issues involved are significant, such that this case may be a harbinger of things to come in the battle over abortion.

TO UNDERSTAND GONZALES V. CARHART, one must begin with the Court's last highly-publicized abortion case, Stenberg v. Carhart. (Yes, the Carhart in both cases is the same person: Nebraska-based abortion doctor Leroy Carhart.) In that 2000 case, the Supreme Court held 5-4 that a Nebraska law banning partial-birth abortions was unconstitutional. Stenberg was decided against the legal backdrop of the landmark Roe v. Wade decision and its 1992 affirmation in Planned Parenthood v. Casey. Together, Roe and Casey provide women with the right to an abortion until viability, the point at which a child born prematurely has a chance of survival. Generally speaking, states are free to ban abortions after the point of viability as long as their statutes carve out exceptions for pregnancies that endanger a woman's life or health.

The Court found Nebraska's partial-birth abortion ban unconstitutional for two reasons. First, it defined the prohibited surgical techniques so broadly that it imposed on a pregnant woman's right to an abortion prior to viability. Second, it provided no exception allowing partial-birth abortions to preserve the health of the mother after viability.

Stenberg is the precedent against which the Partial-Birth Abortion Ban Act will be judged. Thus, the drafters of the legislation tried to ensure that it would not be found unconstitutional for the same reasons that the Nebraska law was struck down. The Partial-Birth Abortion Ban Act defines the proscribed procedure with greater specificity than the Nebraska law did. The dispositive point in Stenberg about interference with a woman's right to an abortion before viability shouldn't be an issue here. The real issue is whether the Partial-Birth Abortion Ban Act will be struck down because, like the Nebraska statute, it lacks an exception allowing for partial-birth abortions to preserve the health of the mother.

The lack of a health exception was no drafting error. Social conservatives worry that, as Justice Thomas wrote in his Stenberg dissent, a health exception "entirely swallows the rule" by allowing sympathetic doctors to make bogus findings of health necessity. In explaining why it includes no health exception, the Partial-Birth Abortion Ban Act itself makes a fairly sophisticated legal argument.

The Act explains that when Stenberg held that partial-birth abortions would be the safest procedure for pregnant women in some instances, the Court was required to defer to the trial court's holdings on the matter unless they were clearly erroneous. A finding of fact is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." This is a high evidentiary bar to clear--but the Congress is not required to defer to a trial court when undertaking its own findings of fact.