Interested Persons Memo on H.R. 4965, the So-Called "Partial Birth Abortion Ban Act of 2002"
MEMORANDUM TO:Interested Persons FROM:ACLU Washington National Office RE: H.R. 4965, So-Called "Partial Birth Abortion Ban Act of 2002"DATE: July 9, 2002
The ACLU opposes H.R. 4965, the so-called "Partial-Birth Abortion Ban Act of 2002" 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 fails to include 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 H.R. 4965 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.
Members of Congress who supported prior bans on so-called "partial-birth abortion" should think twice before supporting H.R. 4965. Since the last vote in Congress, the Supreme Court has spoken unequivocally on so-called "partial-birth abortion" bans. It has made clear that they pose grave threats to women's health and violate the Constitution.
The ACLU urges you to oppose this dangerous and unconstitutional bill when it is again considered in Congress.
The U.S. Supreme Court Has Invalidated A Similar Ban
Over the past five years, anti-choice state legislatures have followed Congress's lead in approving bills that ban on so-called "partial-birth abortion." These bans have been challenged in twenty-one states. Contrary to the suggestion in H.R. 4965 that only a single rogue district court has invalidated such a ban, twenty of the twenty-one trial courts to have considered the medical evidence have ruled that these bans are overbroad, dangerous, and unconstitutional. Although none of the state bans contains language identical to the current federal proposal, medical experts have testified and the overwhelming majority of courts have found that 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.
H.R. 4965 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 encompasses the most common second-trimester abortion method in some circumstances, 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.
H.R. 4965 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, H.R. 4965 is not in fact limited to any stage of pregnancy. While doctors and judges have not yet had an opportunity to assess the precise definition in this bill, the Supreme Court held in Stenberg that a similar ban harms women's health by prohibiting safe and common abortion procedures performed before fetal viability.
Like the ban invalidated in Stenberg, the language in H.R. 4965 could apply in some circumstances to dilation and evacuation ("D&E") procedures, the most common abortion procedure performed in the second trimester. Because the ban's terms could apply to any D&E depending on how the procedure proceeds on a given patient, it could chill doctors from performing every D&E. Such a ban on D&Es would pose a grave threat to women's health.
- Women Must Be Able to Rely on Their Doctors' Discretion to Use the Method Safest for Them.
Even if it were true, as the bill's proponents claim, that H.R. 4965 covers only a single abortion procedure known to the medical community as "dilation and extraction" or "D&X" (also called "intact D&E") 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 woman for whom the banned procedure would be the safest.
Contrary to the contentions in the findings of H.R. 4965, the conclusion that D&X is a safe procedure is not the view of a single trial judge to whose factual findings the Supreme Court deferred. Rather, after hearing extensive expert medical testimony, every court in the country to reach the question but one has agreed that D&X is a safe procedure that may well be safer for some women in certain circumstances. See, e.g. Women's Med. Prof'l Corp. v. Taft, 162 F. Supp. 2d 929, 942 (S.D. Ohio 2001) ("The safety advantages of the D&X over other methods of abortion are both intuitive and well supported by the record."); Rhode Island Med. Soc'y v. Whitehouse, 66 F. Supp. 2d 288, 314 (D.R.I. 1999), aff'd, 239 F.3d 104 (1st Cir. 2001) ("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."); 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.").
These 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 D&X is a safe procedure and may be the safest option for some women. ACOG has explained that "[i]ntact D&E, including D&X, is a minor -- and often safer -- variant of the 'traditional' non-intact D&E." Brief of Amici Curiae American College of Obstetricians and Gynecologists, et al., in Support of Respondent at 6, filed in Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830) ("ACOG Brief"). ACOG has also stated that D&X "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." ACOG Brief at 7.
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. In addition, the Supreme Court squarely rejected the very same claims made in H.R. 4965's "findings" that D&X 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.
H.R. 4965 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.
- H.R. 4965 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)). H.R. 4965 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 H.R. 4965 are simply wrong when they claim that the factual findings contained in this bill somehow obviate the need for a health exception. They argue that because Congress held "extensive" hearings on this issue over two congressional sessions, Congress is better equipped to assess the evidence and determine whether a health exception is needed than are the courts. See H.R. 4965 §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 H.R. 4965'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.'" TurnerBroadcasting 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 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).
- H.R. 4965 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 indefinite 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.
- An Unconstitutionally Vague Definition
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 H.R. 4965. Yet H.R. 4965, 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. In enjoining a Rhode Island ban that is similar to the current federal proposal, a federal court concluded that the law fails to "provide doctors with sufficient guidance to know what the Legislature made illegal." Rhode Island Med. Soc'y, 66 F. Supp. 2d at 309.
The ACLU urges members of Congress to reject H.R. 4965, a bill that is no better crafted than its predecessors. It is a dangerous threat to women's health and an unconstitutional attack on reproductive freedom.