First decision to apply Ayotte ruling
The Ninth Circuit Court, the first lower court to apply the Supreme Court’s new abortion ruling, on Tuesday struck down the federal ban on so-called “partial-birth: abortions. In light of the Justices’ Jan. 18 ruling in the case of Ayotte v. Planned Parenthood of Northern New England, the Ninth Circuit said, “we conclude that the only appropriate remedy is to enjoin enforcement of the Act.” (The new ruling can be found here, thanks to a link provided by Howard Bashman of How Appealing blog.)
(UPDATE: The Second Circuit, in a decision issued shortly after the Ninth Circuit decision became available, also ruled the federal ban unconstitutioinal, but it did not go on to devise a remedy. Instead, it ordered new briefs from the parties on that question and the impact of the Ayotte decision on it — a step that the Ninth Circuit bypassed. The Second Circuit decision can be found here [thanks, again, to Howard Bashman for providing a link.] Senior Circuit Judge Jon O. Newman wrote the main opinion, joiined by Chief Judge John M. Walker, Jr., who also wrote separately. Circuit Judge Chester A. Straub dissented. Judge Straub, saying “I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable,” would have upheld the federal ban. He thus said the Ayotte decision was not applicable, but did agree, in the face of the majority ruling, that further briefs were appropriate.)
(The Second Circuit decision was, in other respects, narrower than the Ninth Circuit ruling. Chief Judge Walker, however, does use his separate opinion to lecture the Supreme Court on how far its abortion rulings have gone to force federal courts “to give their constitutional blessing to nearly every increment of social regulation that touches upon abortion.” See the concluding paragraphs of this post, below.).
The “Partial-Birth Abortion Act of 2003,” the first law passed by Congress to make illegal any abortion procedure, is now awaiting the Supreme Court’s reaction in a pending case, Gonzales v. Carhart (05-380) — a case appealed by the Justice Department after the Eighth Circuit Court found the law invalid. The Justices have twice considered that appeal at private Conferences this month, but have taken no action on it.
The unanimous ruling by the Ninth Circuit panel nullifying the Act was no surprise, since none of the five federal courts at two levels to examine the law so far has found it to be valid. The more interesting part of the ruling was its discussion of the impact on abortion law of the Ayotte ruling. As the Ninth Circuit noted, no other court has considered, as a separate question, what remedy to impose after finding the Act unconstitutional. Before Ayotte, it remarked, a court order against enforcement seemed to be mandatory once the Act was struck down.
The approach the Ninth Circuit took to the remedy question might well be one the Supreme Court might take, unless it is prepared to reopen entirely the question of legislatures’ powers to enact an outright ban on “partial-birth” abortions. With a new Justice, Samuel A. Alito, Jr., on the Court, a majority might be assembled to reexamine that core question, and thus to revisit the 2000 decision in Stenberg v. Carhart striking down a state-level “partial-birth” ban. That was decided on a 5-4 vote, with Alito’s predecessor, Justice Sandra Day O’Connor, in the majority.
The 64-page ruling by the Ninth Circuit found the federal Act unconstitutional for three reasons, summarizing them this way: “First, the Act lacks the constitutionally required health exception. Second, it imposes an undue burden on women’s ability to obtain pre-viability abortions. Third, it is unconstitutionally vague, depriving physicians of fair notice of what it prohibits and encouraging arbitrary enforcement.”
Moving, then, to remedy in Part IV of the opinion, the Circuit Court said it was guided by the three principles the Supreme Court spelled out in Ayotte on the general issue of remedying an unconstitutional abortion restriction: strike down no more of the law than necessary, avoid rewriting the law to make it constitutional, and remain confined by the intent of the legislature in passing the law. Applying those principles, it said, a permanent injunction against enforcement of the 2003 Act “is the only permissible remedy.”
If, the Circuit Court said, it had found the law invalid solely because it lacked a health exception, a narrower injunction might have been drafted. But, “in order to do so, we would be required to violate the intent of the legislature and usurp the policy-making authority of Congress.” the appeals court said, in the opinion written by Circuit Judge Stephen Reinhardt, and joined by Circuit Judges Sidney R. Thomas and William A. Fletcher.
Congress left out a health exception, it found, “in a deliberate effort to persuade” the Supreme Court to overturn its finding in Stenberg in 2000 case that a “partial-birth” ban requires a health exception. “Congress was advised repeatedly that if it passed an abortion ban without a health exception, the statute would be declared unconstitutional,” yet it refused to amend the bill to add such an exception, the Court said. Leaving out the exception, it added, was “a critical compontent” of the measure. Thus, the appeals court said, a court could not properly add a health exception to the law.
“We would not be faithful to its legislative intent were we to devise a remedy that in effect inserts the provision into the statute contrary to its wishes. Such an action would be inconsistent with our proper judicial role,” it commented. “It is impossible to say,” it added, that Congress would have preferred the Act with a health exeption tacked onto it, to no law at all. In situations where legislators cannot get their full legislative goal, legislative leaders may prefer to drop the bill entirely. Dropping a proposal “may be the best way to gain adherents to the cause, inspire the faithful, raise funds, and possibly even generate support for a constitutional amendment,” the Court said.
“Whether the congressional partisans who supported the Act would have preferred to have what they repeatedly and unequivocally deemed to be ineffective legislation or to do without the statute and preserve the status quo ante as a politcal and moral tool is a determination we are simply unable and unwilling to make,” the Court said.
Also taking into account other grounds for striking down the law — the burden it puts on women’s abortion rights and its vagueness, the Court said, the Act’s constitutional errors bar a court from devising a remedy any narrower than nullifying the entire law. Curing those defects, it said, would mean rewriting the law, making decisions only legislators can make, devising a new law fundamentally different from the one Congress passed, and deviating from Congress’ intent. It then catalogued some of the options it would have to consider in deciding which specific abortion procedures might be left covered, and which omitted. Those, it said, are policy choices, and courts are not fit to make them.
Congress, the panel went on, enacted “an overly broad ban,” then left it to the courts to sort out which parts might be valid. That is legislative, not judicial, work, it said. The necessary cutback of the law, it added, would lead to “a drastically more limited” law than the one Congress did pass. “When a ‘narrow’ remedy would substantially change the very nature of a statute, adopting that remedy exceeds the proper judicial role,” it concluded. Congress’ intent, it repeated, was to refuse to follow the roadmap laid out in the Supreme Court’’s 2000 decision in Stenberg.
Saying in conclusion that it was reluctant to nullify an entire law, the Circuit Court said that was its duty, so it upheld the permanent injunction issued by U.S. District Judge Phyllis Hamilton of San Francisco in her 2004 decision in the case,
The Second Circuit decision on the new Act found it unconstitutional only for lack of a health exception. It did not rule on the separate challenges on whether the law imposes an undue burden on women’s abortion right and whether the law was unconstitutionally vague. Whether it will need to rule on those, it said, “will likely depend on our decision as to the appropriate remedy, because invalidation of the statute in its entirety would make it unnecessary” to consider those other claims.
On the separate question of remedy, the Second Circuit said that, with the guidance of the Supreme Court in the Ayotte case, “all parties should now be afforded an opportunity to advise us as to their views concerning an appropriate remedy.” It told the parties to file supplmental briefs, no longer than 25 pages, within 30 days on the remedy issue.
Perhaps the more interesting part of the Second Circuit’s ruling was the separate, concurring upon by Chief Judge Walker. He criticized the Supreme Court for sanctioning “a mode of constitutional analysis in abortion cases that has removed the lower courts from their traditional role as arbiter of specific factual disputes and instead asked them to exercise their ‘gravest and most delicate duty,’ the invalidation of a statute,…based upon a speculative showing that a statute might, in some yet-to-be-presented circumstance, have an unconstitutional application.”
Walker was particularly critical of the Court’s Stenberg decision, saying it “exemplifies these larger problems” in judicial decision-making. He dicussed what he said were three flaws in that holding: “(1) it equates the denial of a potential health benefit (in the eyes of some doctors) with the imposition of a health risk and, in the process, promotes marginal safety above all other values, however worthy they may be; (2) it endorses a rule that permits the lower courts to hold a statute facially invalid upon a speculative showing of harm, even if, in the vast majority of cases, the statute’s application would not lead to an unconstiitutional result; and (3) it estalishes an evidentiary standard that all but removes the legislature from the field of abortion policy.”
The Chief Judge concluded with a rhetorical question: “Is it too much to hope for a better approach to the law of abortion — one that accommodates the reasonable policy judgments of Congress and the state legislatures without departing from established, generally applicable, tenets of constitutional law?”
That separate opinion virtually lays out a roadmap the Supreme Court might follow if a majority now wishes to overturn the Stenberg decision, and to strike off in an entirely new direction on abortion jurisprudence.
I agree that the FPBA is unconstitutional, but I do not agree with the Ninth Circuit’s reasoning.
The panel notes that the District Court’s holding:
(Slip op. at 12) The Ninth Circuit panel accepts this rationale almost as is:
(Id. at 16).
The Ninth Circuit failed to contemplate the obvious question on which any action against the FPBA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute’s terms are “unconstitutionally vague,” and it becomes irrelevant whether it includes a health exception.
For these reasons, I concur only in the judgement - situation normal where the Ninth Circuit is concerned, see The other side of the knife, 11/4/2005 (concurring in the Fields v. Palmdale School District verdict). I would declare the act unconstitutional because it lacks a basis in the Constitutional grant of power to Congress.
Comment by Simon — January 31, 2006 @ 4:26 pm
According to post, 2d Cir Judge Straub voted to uphold the constitutionality of a partial birth ban on abortions saying “I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unaccepable,” would have upheld the federal ban.
Does this judge really think he was asked whether a procedure is morally, ethically, and legally (un)acceptable? Is that what he thinks the constitutionality of a statute turns on? being taken out of context, the man is a judicial *@!!@*. Especially “legally unacceptable”. Now there’s an empty phrase.
Comment by rodgerlodger — January 31, 2006 @ 4:53 pm
I agree that it seems irrelevant whether an individual judge finds something “morally unacceptable,” but as we all know, activist judges come only from the left.
Simon raises an interesting question. Have ANY of the litigants challenging the Partial Birth Abortion Ban Act in the various federal proceedings even raised the Commerce Clause issue? My sense is that it is such a guaranteed loser that they may not have bothered.
Comment by Steve M — January 31, 2006 @ 6:42 pm
It’s an indicator of how topsy-turvy Constitutional jurisprudence has gotten when it can be said - with some accuracy, in truth - that an argument which raises the constitutional authority for Congress to enact a statute can be described as a non-starter. the Partial Birth Abortion Ban Act, 117 Stat. 1201, makes absolutely no attempt to justify the authority on which it rests. In its majesterial length of eight pages, it describes in detail the horrors of the D&E procedure, and discusses the needs for exceptions; it goes on to note that “[a] ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy . . . [and] [i]n light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions.” §2(14)(F) et seq. None of which is necessarily untrue, but the FPBA never really addresses itself to a question that I would require Congress to place at the head of every bill it passes: its Constitutional authority for enacting the statute in the first place.
There’s a great quote from Justice Scalia, “[i]f you care passionately about something has become the only test to determine if something is constitutional. How passionately do you care?” This act is a clear demonstration of that much, since its own sense of itself is overwhelming moral passion - passion that I share, granted - that this is a terrible act, and that somebody should step into the breach and ban it. But, as Justice Black put it, “[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution” (Reid v. Covert, 354 U.S. 1) (1957); that holds as much true when it means striking down a statute I agree with as when it means striking down one I do not agree with.
Comment by Simon — January 31, 2006 @ 7:48 pm
Simon: “the Partial Birth Abortion Ban Act, 117 Stat. 1201, makes absolutely no attempt to justify the authority on which it rests.”
Sure it does, it justifies it with the interstate commerce clause, the clause that can justify anything. In that respect the law is narrow, however that is neither here nor there since the intent of the law is to overturn Stenberg.
Comment by BlueCollarGuy — January 31, 2006 @ 8:23 pm
Perhaps it falls under Congress’ Section 5 power to enforce the due process clause of the 14th as it regards to victims of partial birth abortion. Although, the conservatives on the SC don’t seem to be too enthralled at using sec 5 to enforce the due process clause.
Comment by rufus peckham — January 31, 2006 @ 9:31 pm
In response to Simon, the authorization offered, figleaf or not, is thus: “Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.”
I guess this includes those with magazines in their waiting room from other states, but so it goes. But, hey, I agree with the sentiment. A column in National Review did as well. If this reaches the SC, Justice Thomas should have a concurring statement that he only is upholding the law because the Commerce Clause claim was not raised.
Comment by Joe — January 31, 2006 @ 11:19 pm
See footnote 7 of Justice Ginsburg’s opinion in Cutter v. Wilkinson. The Court does not generally consider constitutional challenges not considered in the court below.
Comment by Kent Scheidegger — January 31, 2006 @ 11:45 pm
The oblique reference to the commerce clause, frankly, fails dismally in the mustard-cutting stakes. I suppose the argument goes that you have to be born to participate in interstate commerce; I have a similar idea: we should pass a law regulating handgun ownership because if you own a handgun it has to have been transported across state lines at some point. Or, perhaps Congress can prohibit my growing potatoes in my back yard, since that might affect my participation in interstate commerce?
But wait a minute, I thought us benighted FedSoc types didn’t like laws like that? How we scorned the expansion of the commerce clause into a blank cheque; “if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” Did we not cheer when Lopez and Morrison began to chip away at what Justice Thomas called “this rootless and malleable standard . . . [that] encourage[s] the Federal Government to persist in its view that the Commerce Clause has virtually no limits“?
Calling it a fig leaf seems over generous. The act briefly and obliquely mentions it once, as if as an afterthought; it’s tantamount to flaunting its status.
Neither can I accept Rufus’ argument about the due process clause; while I think it’s a stretch of the due process clause in any instance, the more fatal problem is that one would have to demonstrate that the original understanding of “person” in 1868 included an unborn child, a contention I think to be a forlorn prospect. I would be delighted to be shown some research that indicates conclusively (or even at all) that they were.
Comment by Simon — February 1, 2006 @ 8:51 am
Is there an argument that once the fetus is even partially outside the womb, it is “born” and therefore a person?
Comment by Joe — February 1, 2006 @ 8:39 pm