The first appellate court decision concerning a federal law called the Partial-Birth Abortion Ban Act of 2003 came down on Friday. In it, the Court of Appeals for the Eighth Circuit struck down the law as unconstitutional.
Here's the story: Five years ago, in a case called Stenberg v. Carhart, the Supreme Court invalidated a Nebraska law banning all so-called “partial birth” abortions. In a situation where a woman has the constitutional right to seek an abortion, the Supreme Court majority reasoned, a state may not regulate the method of her abortion in a way that endangers her health. Specifically, “where a significant body of medical opinion believes [an abortion] procedure may bring with it greater safety for some patients,” the state may not ban that procedure unless the ban incorporates an exception to cover those cases in which, medically, the banned procedure is the best approach. The Court canvassed the views of medical groups. It didn't find a consensus among doctors that, as plaintiffs argued, the banned procedures would be the safest for some patients. It didn't find a consensus the other way either, though: There was no consensus that the banned procedures couldn't sometimes be the safest approach for a pregnant woman. Bottom line: doctors disagreed. That risk that the state might be banning a sometimes-medically-necessary procedure, said the Court, was enough to require the state to write a exception into the law — and it hadn't, so the law was unconstitutional. Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas dissented.
Congress responded by enacting a new, nationwide ban. It explained in the statute that there was a “moral, medical, and ethical consensus” that the covered procedures were not only “gruesome and inhumane,” but indeed “never medically necessary.” The Stenberg v. Carhart decision, Congressional leaders explained, was irrelevant: The Court had announced legal consequences following from its medical uncertainty, but in fact there was no uncertainty. The Court's understanding about the possible medical desirability of the procedure had been superseded by Congress' declaration that the procedure was never medically in the interests of any patient.
The Eighth Circuit, on Friday, disagreed. The Supreme Court's earlier decision, it said, had dispositively established that there was a dispute among doctors over whether the procedure was sometimes medically desirable. Congress couldn't change that simply by announcing a consensus.
There's a bunch going on here that's interesting. The Court in Stenberg v. Carhart had responded to uncertainty by insisting that Indiana could not take the risk of banning a treatment that might (it didn't know) in some cases prove to be the safest choice. Congress responded that it didn't see the matter as at all uncertain, and that its own sureness should govern. For now, though, the most important thing to say about the Eighth Circuit's decision is that it's probably really short-lived. Only four of the Justices who voted with the Stenberg v. Carhart majority are still there. Justice O'Connor, of course, was the fifth.
I am neither an doctor or lawyer (or merchant or chief, for that matter), but from here, it seems that there is a logical loop-hole in the definition of the banned procedure: the law defines the banned procedure as not medically necessary. Therefore, where the procedure is determined to be medically necessary, it is not banned.
A lot of these cases were part of a larger strategy — pass a lot of unconstitutional little bans to “show” that Roe has to be undone to get any abortion ban though. Who knows if they’ll have to continue down this road…
Unfortunately no, BroD. The statute defined the procedure in terms of the physical actions performed, and in addition declared that the practice was “never medically indicated to preserve the health of the mother [and] in fact unrecognized as a valid abortion procedure by the mainstream medical community.” For a court that considered itself bound by this language, a doctor who testified that the procedure — as defined — was medically necessary in a particular case would have to be considered, well, wrong.
For longer than I’ve been in this business, legislatures unsympathetic to abortion have been enacting a wide range of restrictions making abortion harder or more expensive to get; the courts have then had to decide whether the restrictions were permissible. With Kennedy as the swing vote, it seems likely that the Court will be upholding Roe, but also upholding almost all of those new restrictions. The situation changes if we get a second resignation — but I’ll write more about that in another post.
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Something I’ve always wondered: What’s the constitutional authority for the Congressional Act? It seems a stretch to find interstate commerce. I can’t find the act itself on-line, but the opinion quotes the act as “any physician who, in or affecting interstate commerce, knowingly performs a partial-birth abortion…”. How is performing an abortion commerce? (I remember that old anything-is-commerce case [WIckham?], but did even it go this far?)
Here’s a copy of the statute; as you note, it bans the performance of an abortion “in or affecting interstate commerce.” Abortions are generally provided for money, though not necessarily for profit; the medical industry of which reproductive-health services are a part is a national one, in which doctors, supplies, and even patients commonly move across state lines. That’s enough. See the Court’s opinion just now in Gonzales v. Raich.
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