“Partial-birth” abortion case advances

By Lyle Denniston
on Jul 8, 2005 at 10:04 pm

Moving the heated controversy over a ban on so-called “partial-birth” abortion closer to the Supreme Court, the Eighth Circuit on Friday ruled that Congress acted unconstitutionally in 2003 in outlawing such abortions nationwide. This was the first of three expected decisions by Circuit Courts on an issue that almost certainly will go to the Supreme Court to be decided finally. The Eighth Circuit ruled in LeRoy Carhart, et al., v. Gonzales (docket 04-3379). Similar test cases are pending in the Second and Ninth Circuits.

The three-judge panel disposed of the case in a fairly complex yet still compact 21-page ruling – a judicial effort far less strenuous than the 444-page decision by U.S. District Judge Richard G. Kopf of Lincoln, Neb., striking down the law last September 8. The Circuit Court upheld one of Judge Kopf’s conclusions: that the federal “Partial-Birth Abortion Ban Act” was invalid because it lacked an exception to the ban that would permit the procedure when necessary to protect a pregnant woman’s health.

A significant feature of the Circuit Court’s decision was that it nullified the federal law without second-guessing the factual conclusions in which Congress had declared that there would never be a “medical necessity” for use of the “partial-birth” abortion method. The court declared: “We need not address the government’s assertions that federal courts must defer to congressional fact-finding.” The approach it took thus put aside the primary argument the Justice Department had made in defending the law – that is, Congress’ finding of a total lack of medical necessity was entitled to deference by the courts.

After the Supreme Court had ruled in 2000 that a Nebraska state law banning the procedure was invalid in part because it lacked a health exception (Stenberg v. Carhart), Congress sought to get around that decision by passing a federal law, concluding as a fact that the particular procedure was never medically necessary. Like the case decided by the Justices in 2000, the new Eighth Circuit case came from Nebraska and, indeed, the lead challenger in the case to the federal law – Dr. LeRoy Carhart – is the same doctor who won the Supreme Court case against the state law five years ago.

It is possible that the new decision could make the Nebraska case the first to reach the Supreme Court as a sequel testing anew the power of legislatures, national and state, to ban the abortions at issue. Another significant test case, involving a state ban enacted in Virginia, has been struck down by a divided panel of the Fourth Circuit, but that court has shown an interest in a motion for rehearing en banc – an issue that won’t be fully briefed until later this month. (That case is Richmond Medical Center for Women, et al., v. Hicks, et al., docket 03-1821.)

In the Nebraska case involving the federal ban, the Circuit Court said that the Justice Department had made its plea for deference to Congress upon “an erroneous assumption” – that is, that the key question in the case was a factual question about the medical necessity of the procedure. The ultimate factual conclusion the lawmakeers made on that point, the court said, “is irrelevant.”

The “precise question that must be answered,” it added, is “whether substantial medical authority supports the medical necessity of the banned procedure.” That, it said, cannot be answered by looking at what Congress thought was a purely factual determination about a consensus in the medical community. Rather, it said, the question is “whether there is a certain quantum of evidence” to support the legal conclusion that there is a medical need for the method. That approach is called for, it said, in order to “achieve constitutional uniformity” across the nation, instead of leaving it to individual judges to determine case by case whether there is a factual need for the procedure.

The Supreme Court, the Eighth Circuit ultimately concluded, already had settled that core issue in its 2000 decision in the Stenberg case. The highest court, the Circuit judges concluded, had determined that “substantial medical authority supported the need for a health exception” to a ban on partial-birth abortions. “The government,” it said, “has not adduced evidence distinguishing this case from Stenberg.”

The Supreme Court, it said, had drawn a legal – a constitutional – conclusion that will stand unless and until medical technology and medical knowledge advance to the point that the particular procedure became obsolete. “Should that day come, legislatures might then be able to rely on this new evidence to prohibit partial-birth abortions without providing a health exception,” it commented. (The Supreme Court, of course, could change its mind about its constitutional conclusion if it takes up the issue again, but the Circuit Court was bound by the 2000 decision.)