Interested Persons Memo: Ban on Safe Abortion Procedures: The So-Called "Partial Birth Abortion Ban Act of 2003" (S.3/H.R. 760)

Document Date: June 18, 2003


TO:Interested Persons FROM:ACLU Washington National Office RE:Ban on Safe Abortion Procedures: The So-Called “”Partial Birth Abortion Ban Act of 2003″” (S.3/H.R. 760) DATE: June 18, 2003

The ACLU opposes the so-called “”Partial-Birth Abortion Ban Act of 2003″” (S.3/H.R. 760) because it outlaws safe abortion procedures and thus threatens women’s health and reproductive rights. Proponents of this bill claim that it will prohibit only a single, “”late-term”” abortion procedure. But the bill prohibits more than a single procedure; it bans safe and common abortion methods used in the second trimester of pregnancy, well before fetal viability. It also lacks an exception to protect women’s health — a requirement that is constitutionally compelled, as the Supreme Court made clear in its recent ruling in Stenberg v. Carhart, 530 U.S. 914 (2000).

The sponsors of this bill claim that the newest iteration of the ban is materially different from earlier versions and that it should therefore withstand constitutional scrutiny. They are wrong. The bill continues to reach more than a single abortion procedure, and it continues to lack a required health exception. The bill is therefore just as constitutionally infirm as its predecessors.

The ban passed the Senate on March 13, 2003, by a vote of 64 to 33. It passed the House on June 4, 2003, by a vote of 282 to 139. The bill is expected to be signed by President Bush as soon as it reaches his desk.

The U.S. Supreme Court Has Invalidated A Similar Ban.

Over the past seven years, anti-choice state legislatures have followed Congress’s lead in approving bills that ban so-called “”partial-birth abortion.”” These bans have been challenged in twenty-one states. Contrary to the suggestion in the current version of the bill that only a single rogue district court has invalidated such a ban, in every state in which such bans were challenged, courts invalidated them as unconstitutional. Although none of those state bans contained language identical to the current federal proposal, medical experts have testified and the courts have consistently found that these similar state bans reach safe and common abortion procedures used well before fetal viability and that they threaten women’s health.

Nebraska’s ban on so-called “”partial-birth abortion”” was ultimately reviewed by the Supreme Court. On June 28, 2000, in Stenberg v. Carhart, the Court invalidated that ban on two grounds, either of which alone would have been sufficient to condemn the law:

(1) The ban’s failure to include a health exception impermissibly threatened women’s health.

(2) The ban’s language encompassed the most common method of second-trimester abortion, placing a substantial obstacle in the path of women seeking abortions and thereby imposing an unconstitutional “”undue burden”” on a woman’s right to choose.

The current federal bill suffers from the very same constitutional flaws:

(1) It lacks any health exception whatsoever, in violation of the Supreme Court’s clear constitutional command.

(2) Its language reaches the most common second-trimester abortion method, and thus it imposes an unconstitutional “”undue burden”” on a woman’s right to seek an abortion.

Bans on Safe Abortion Procedures Harm Women’s Health.

This bill threatens women’s health. Here are some of the reasons why:

It Would Prohibit Safe Second-Trimester Abortion Methods.

Although its sponsors characterize it as aimed at a single, “”late-term”” procedure, this bill is not in fact limited to any stage of pregnancy. The Supreme Court held in Stenberg that a similar ban harms women’s health by prohibiting safe and common abortion procedures performed well before fetal viability.

Like the ban invalidated in Stenberg, the language in this bill would reach dilation and evacuation (“”D&E””) procedures, the most common abortion procedure performed in the second trimester. Such a ban on D&Es would pose a grave threat to women’s health.

Even If The Bill Banned Only One Procedure, It Would Still Endanger Women’s Health.

Even if it were true, as the bill’s proponents claim, that the measure covers only a single abortion procedure known to the medical community as “”intact D&E”” (also called “”dilation and extraction”” or “”D&X””), it would still endanger women’s health. A threat to women’s health always results when a safe medical procedure is removed from the physician’s array of options, as there will always be some women for whom the banned procedure will be the safest.

After hearing extensive expert medical testimony, every court in the country to reach the question but one has agreed that intact D&E is a safe procedure that may well be safer for some women in certain circumstances. See, e.g. Daniel v. Underwood, 102 F. Supp. 2d 680, 684 (S.D. W. Va. 2000) (finding that intact D&E is the “”safest [abortion] procedure in certain circumstances,”” with “”advantages . . . for some patients””); Rhode Island Med. Soc’y v. Whitehouse, 66 F. Supp. 2d 288, 314 (D.R.I. 1999) (“”Defendants claim that a D&X could never be necessary to save a woman’s health, but the evidence at trial failed to support that contention. . . . Therefore, this Court finds that the D&X could be used to preserve a woman’s health and must be available to physicians and women who want to rely upon it.””), aff’d, 239 F.3d 104 (1st Cir. 2001); Richmond Med. Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795, 827 n.40 (E.D. Va. 1998), aff’d, 224 F.3d 337 (4th Cir. 2000) (“”[T]he record here contains significant evidence that the D&X procedure is often far safer than other D&E procedures.””). Thus, contrary to the contentions in the findings of this bill, the conclusion that intact D&E is a safe procedure is not the view of a single trial judge to whose factual findings the Supreme Court deferred.

These court rulings were based on a wealth of credible medical evidence. Indeed, the American College of Obstetricians and Gynecologists (“”ACOG””), the leading professional association of physicians who specialize in the health care of women, has concluded that intact D&E is a safe procedure and may be the safest option for some women. ACOG has stated that it “”may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”” ACOG, Statement of Policy, Abortion Policy at 3 (Sept. 2000). “”Only the physician, in consultation with the patient and based on her circumstances, can make this decision.”” Brief of Amici Curiae American College of Obstetricians and Gynecologists, et al., in Support of Respondent at 7, filed in Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830), available at 2000 WL 340117.

Relying on such medical evidence, the Supreme Court concluded in Stenberg that “”significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure.”” Stenberg, 530 U.S. at 932. Indeed, the Court concluded that “”a statute that altogether forbids D&X creates a significant health risk.”” Id. at 938. The Supreme Court reached this conclusion in the face of the very same claims made in the current federal ban’s “”findings”” that intact D&E is somehow unsafe because it allegedly creates risks of cervical incompetence and lacerations or risks from blind instrumentation and conversion of the fetus to a breech position. Stenberg, 530 U.S. at 933-38. Medical evidence fails to support any of these claims.

Government Intrusion in the Operating Room Jeopardizes Safe Medical Care.

Politicians should not regulate medicine in a way that undermines the safety of patients. Legislators are not trained to make medical decisions. They should leave decisions about the best surgical techniques for abortion in the hands of doctors and patients. As a general rule, the government should not be in the business of banning medical procedures that doctors consider safe and medically appropriate in certain circumstances.

Bans on Safe Abortion Procedures Are Unconstitutional.

This bill bans safe abortion procedures and thus violates constitutional protections for reproductive freedom. As the Supreme Court made clear in Stenberg, a procedure ban such as this one cannot stand.

This Bill Would Impermissibly Endanger Women’s Health and Safety.

The government may never, even in the latest stages of pregnancy, prohibit abortions that are necessary to preserve women’s lives or health. See Stenberg, 530 U.S. at 921 (citing Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)). This bill applies well before fetal viability and yet contains no health exception whatsoever and a dangerously inadequate life exception. Like the ban at issue in Stenberg, this ban is unconstitutional for lack of an exception to protect women’s health. See Stenberg, 530 U.S. at 938.

The sponsors of this bill are simply wrong when they claim that the factual findings contained in the measure somehow obviate the need for a health exception. They argue that because Congress held hearings on this issue, Congress is better equipped to assess the evidence and determine whether a health exception is needed than are the courts. See S.3/H.R. 760 § 2(5). They also contend that the United States Supreme Court is required to accord “”great deference”” to congressional findings concerning the constitutionality of a bill. Id. at § 2(7) – (13). Neither contention is correct.

First, the Supreme Court may not defer to what amounts to a legal conclusion by Congress that a health exception is not constitutionally required. Separation of powers principles make clear that it is the job of the judicial branch, not Congress, to say what the law is. Thus, in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court invalidated a portion of the Violence Against Women Act despite extensive congressional findings. In doing so, the court rejected Congress’s findings and Congress’s own interpretation of the Commerce Clause, noting that “”‘[s]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.'”” Morrison, 529 U.S. at 614 (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995)).

Second, the Court has repeatedly held, including in cases cited in the current federal proposal’s findings, that whatever deference is due to legislative findings does not “”insulate[] [those findings] from judicial review,”” nor does it “”‘foreclose [the Court’s] independent judgment of the facts bearing on an issue of constitutional law.'”” Turner Broadcasting System v. FCC, 512 U.S. 622, 666 (1994) (quoting Sable Communications v. FCC, 492 U.S. 115, 129 (1989)); see also, e.g., Landmark Comm. Inc. v. Virginia, 435 U.S. 829, 843 (1978) (“”[D]eference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake””); Block v. Hirsch, 256 U.S. 135, 153 (1921) (“”No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law . . . may not be held conclusive by the Courts.””). Rather, “”[i]t is . . . a ‘permanent and indispensable feature of our constitutional system’ that ‘the federal judiciary is supreme in the exposition of the law of the Constitution.”” Morrison, 529 U.S. at 616 n.7 (quoting Miller v. Johnson, 515 U.S. 900, 922-23 (1995) (internal quotations omitted)). As former Chief Justice Burger has explained:

A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.

Landmark Comm., 435 U.S. at 844. For these and other reasons, the Supreme Court has rejected congressional attempts to overrule the Court’s constitutional decisions. See Dickerson v. United States, 530 U.S. 428, 435-36 (2000) (rejecting Congress’s attempt to overrule Miranda v. Arizona, 384 U.S. 436 (1966)); City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (rejecting Congress’s attempt to overrule Employment Division v. Smith, 494 U.S. 872 (1990), by passing the Religious Freedom Restoration Act).

This Bill Would Impose an Unconstitutional “”Undue Burden”” on Abortion Rights.

By prohibiting safe abortion methods, this bill would compromise women’s health and limit physicians’ discretion to choose the most medically appropriate abortion method for their patients. It also threatens the basic right to choose abortion. The Supreme Court has held that the government may not prohibit a woman from making the ultimate decision, in accordance with her own conscience and moral imperatives, to have an abortion. Abortion restrictions are unconstitutional if they place an “”undue burden”” on a woman’s right to choose abortion — that is, if they would place a substantial obstacle in the path of women seeking pre-viability abortions.

This bill, like the ban invalidated in Stenberg, poses a substantial obstacle by banning an array of second-trimester abortions. As the Supreme Court held in reviewing Nebraska’s similar ban, “”even if the statute’s basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures.”” Stenberg, 530 U.S. at 939. Such a broad ban is an unconstitutional undue burden on a woman’s right to terminate her pregnancy before viability.

This Bill Is Unconstitutionally Vague.

The Due Process Clause prohibits laws so vague that persons of ordinary intelligence must guess at their meaning. Vagueness is particularly dangerous in a bill that imposes criminal penalties, such as the current federal proposal. Yet this bill, like other so-called “”partial-birth abortion”” bans before it, uses terms so imprecise that it fails to provide physicians adequate notice as to which abortion methods it prohibits. For example, it is unclear what the term “”overt act”” means and what procedures the term encompasses. The bill would therefore subject physicians to arbitrary enforcement under unclear standards. See, e.g., Planned Parenthood v. Farmer, 220 F.3d 127, 134-41 (3d Cir. 2000).

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The “”Partial-Birth Abortion Ban Act of 2003″” is no better crafted than its predecessors. It is a threat to women’s health and an unconstitutional attack on reproductive freedom.