The next abortion case?
A decision by the Fourth Circuit on Friday may set the stage for the next test in the Supreme Court of the constitutionality of laws that ban so-called “partial birth” abortions. By a 2-1 vote, the Circuit Court nullified Virginia’s 2003 law seeking to outlaw that form of medical practice for terminating pregnancy. A strongly worded dissent by a conservative member of the Fourth Circuit panel, Circuit Judge Paul V. Niemeyer, could embolden Virginia state officials to take the case on to the Supreme Court – very likely reaching it ahead of other “partial birth” cases, now awaiting rulings in three federal circuit courts, that test the federal ban on such abortions.
The Fourth Circuit’s decision in Richmond Medical Center for Women, et al., v. Hicks, et al. (docket 03-1821) can be found here.
The main point of dispute between the majority ruling, written by Circuit Judge M. Blane Michael, and Judge Niemeyer’s dissent is the conclusion of the court that the Supreme Court has laid down a “per se” constitutional rule that an attempt to ban the “partial-birth” abortion method must always contain an exception to protect the health of the pregnant woman when her doctor decides the method is medically necessary for her. That is the interpretation Judge Michael (joined by Circuit Judge Diana Gribbon Motz) gives to the Supreme Court’s 2000 decision in Stenberg v. Carhart, striking down Nebraska’s “partial birth” abortion law.
Virginia had argued, unsuccessfully as it turned out, that the Virginia law was sufficiently different from the Nebraska ban that its statute’s lack of a health exception should not doom it. Virginia also had argued that the challengers to the Virginia law had not put on sufficient medical evidence to show that a health exception was necessary in the “partial-birth” context.. The majority rejected both arguments. It was not necessary to prove, with evidence, that some women would have a medical need for a “partial-birth” procedure, the court said, because “Carhart established the health exception requirement as a per se constitutional rule.” Judge Niemeyer protested that the ruling created “a bold, new law.” Nothing in the Carhart decision, he argued, “indicates that the Court was creating a per se constitutional rule.”
Another significant facet of the majority ruling was that it made clear, for the first time, that the Fourth Circuit does not apply in the abortion context the normal rule for judging facial challenges to statutes. The so-called “Salerno” rule says that a facial challenge may succeed only if there is proof that in no set of circumstances can a law be applied constitutionally. There is a split in the circuits on whether the Salerno approach does govern in cases involving facial challenges to abortion laws, and some analysts had counted the Fourth Circuit among the minority of courts applying Salerno to such cases. Friday’s ruling concludes just the opposite. (This is an issue the Supreme Court itself will be confronting in its next Term, because the Justices on May 23 agreed to hear it in the New Hampshire abortion case, Ayotte v. Planned Parenthood of Northern New England [04-1144]. That case, however, involves a parental notice abortion law, not a “partial-birth” statute.)
Three U.S. District Courts have struck down the federal ban on the “partial-birth” method, and all three cases have been appealed by the Justice Deparmtent to circuit courts. None, however, has yet ruled on the federal statute. (The three circuits are the 2d, 8th and 9th.)
Both this case and the recently-accepted Ayotte v. Planned Parenthood seem to be running into exactly the same roadblock: that they provide no (or inadequate) exceptions for the life of the mother, something that flies in the face of Casey in particular. I cannot see how either of these could expect to survive a griling by the court, and I think it would be far more interesting to see a case where adequate exceptions WERE made.
Comment by Simon — June 3, 2005 @ 6:04 pm
I figured the reason the law was struck down was because it did not include an exemption for the life of the mother. That makes it unconstitutional. I think anti-choice forces write “partial birth” abortion laws without that exemption on purpose. They know the laws will either die as proposed bills (as one did in Massachusetts) or they will later be struck down. That way, they can keep the issue alive.
Comment by Trish Wilson — June 4, 2005 @ 11:01 am
The next abortion case?
SCOTUS blog reports that a case regarding partial birth abortions may be en route to the Supreme Court:A decision by the Fourth Circuit on Friday may set the stage for the next test in the Supreme Court of the constitutionality
Comment by Unlearned Hand — June 4, 2005 @ 1:00 pm
Actually, Ayotte is going to be more about the standard of review as laid out in Casey (the undue burden standard). Under the undue burden standard, there has to be a health exception. So if SCOTUS rules, in Ayotte, that the undue burden standard isn’t the standard for a facial challenge to abortion laws, then it’s a whole new ballgame…
At least, that’s what I gather.
Comment by Cara — June 4, 2005 @ 10:09 pm
Both of the above comments are inaccurate. It is not that these statutes fail to include an exemption for the life of the mother; it is that these statutes fail to include an exemption for the health of the mother. Health is more capacious a term and implies not only imminent risk of death, but any economic, familial, social, psychological, mental, or spiritual reason, as per Doe v. Bolton. In other words, any reason (read: abortion-on-demand).
The reason these bills are being struck down is that they do not contaion a clause that explicitly permits women to have late-term abortions because they are tired of having unbearable headaches.
Comment by Jonathan Barker — June 5, 2005 @ 4:19 am
FYI – I have stopped posting comments re Ayotte other than those very strictly limited to the jurisprudential issue.
Comment by Tom Goldstein — June 5, 2005 @ 7:27 am
Yeah… cause one problem this blog has is being flooded with comments.
How about letting us read them and deciding what is relevant?
Comment by anon — June 5, 2005 @ 9:07 am