DAVID J. GARROW SIGNIFICANT RISKS: GONZALES v CARHART AND THE FUTURE OF ABORTION LAW The Supreme Court’s five-to-four upholding of the facial consti- tutionality of the Partial-Birth Abortion Ban Act (PBABA) of 2003 inApril2007representedatleastasymbolicbreakfromitsprevious major abortion ruling, Stenberg v Carhart, in 2000. The Court’s grant of certiorari in Gonzales v Carhart was announced on Justice Samuel A. Alito’s first public day on the bench, February21,2006, andmostcommentatorsbelievedthatAlito’sreplacementofJustice Sandra Day O’Connor, who had cast the decisive fifth vote when Stenberg narrowly voided a Nebraska law banning “partial-birth” abortions, promised a different outcome in this case. That proved correct,yetthecrucialJustice,andauthorofanunusuallyintriguing majority opinion, was Anthony M. Kennedy, who was challenged to square his angry dissent in Stenberg with his insistent, ongoing support for his reading of the landmark controlling opinion in Planned Parenthood of Southeastern Pennsylvania v Casey, which he hadsofamously—orinfamously—joinedfifteenyearsearlierinJune 1992. Kennedy’s opinion in Gonzales v Carhart drew considerable editorial obloquy,1 but a close and open-minded reading of the DavidJ.GarrowisSeniorResearchFellow,HomertonCollege,UniversityofCambridge. Author’s note: Thanks to Jan Crawford Greenburg, Arthur Hellman, andDennisJ. Hutchinsonforhelpfulreactionsandrecommendations. 1See,e.g.,CharlesFried,“TheSupremeCourtPhalanx”:AnExchange,NewYorkReview of Books (Dec 6, 2007) (available at http://www.nybooks.com/articles/20877)(asserting (cid:1)2008byTheUniversityofChicago.Allrightsreserved. 978-0-226-36252-6/2008/2007-0001$10.00 1 2 THESUPREMECOURTREVIEW [2007 decision suggests that the ruling represents as narrow as possible an upholding of PBABA. Such a reading also indicates that Ken- nedy’s insistence that he has remained entirely truetowhathesaid and signed onto in Casey is a highly credible contention that his critics have failed to consider carefully or fairly. Furthermore, a thorough and inclusive review of Gonzales v Carhart’s actual im- pact—uponthemedicalpracticeofabortion,uponabortionpolitics and legislation, and upon abortion litigation to date—reveals that in all three arenas the decision has had and likely will continue to have far more modest consequences than many critics and com- mentators initially proclaimed. I The origins of the federal PBABA of 2003 reach back to 1993, the year after the Supreme Court’s stunning but explicitly circumscribed reaffirmation of the core holding of Roe v Wade in Planned Parenthood v Casey. Early that year,abortionopponentsbe- gan to publicize an unpublished seminar paper that an Ohio abor- tionprovider,Dr.MartinHaskell,hadpresentedataNationalAbor- tion Federation meeting in September 1992. In it, Dr. Haskellhad describedinfullmedicaldetailaprocedureheusedforlatesecond- trimesterabortionsthatdifferedsignificantlyfromthestandardsec- ond-trimester procedure of dilation and evacuation, or “D&E.” Haskell’s approach was to remove the fetus as intact as possible, andheintroducedthenewnamedilationandextraction,or“D&X,” forhisprocedure.ThekeytoHaskell’smethodwaswhathetermed “fetal skull decompression,” so that the largest part of the fetus could fit through the cervical os rather than require piecemeal re- moval as in a standard D&E.2 Bymidyear,abortionopponents’effortstodrawattentiontoHas- kell’s method werereceivingprominentnewscoverageinthemed- ical trade press, which also reported that another physician, Dr. that“JusticeKennedy’sdecisionisincompatiblenotonlywithprecedentbutwithhisown stronglyexpressedprofessionofprinciple”). 2SeeJennyWestberg,GrimTechnologyforAbortion’sOlderVictims,LifeAdvocate(Feb- ruary1993) (availableat http://www.lifeadvocate.org/arc/arc.htm);MartinHaskell,Dila- tion and Extraction for Late Second Trimester Abortion (Sept 13, 1992), in Second Trimester Abortion:FromEveryAngle27–33(1992),citedinDavidJ.Garrow,LibertyandSexuality: The Right to Privacy and the Making of Roe v. Wade 719, 966 n 29 (updated ed 1998). Perhapssurprisingly,noPDFcopyofHaskell’spaperisuniversallyavailable.See,however, 2nd Trimester Abortion: An Interview with W. Martin Haskell, M.D., CincinnatiMedicine 18–19(Fall1993). 1] SIGNIFICANTRISKS 3 James T. McMahon of Los Angeles, used the same procedure and termedit“intactD&E.”BothdoctorsexplainedtoAmericanMedical News, published by the American Medical Association, that intact as opposed to dismembered evacuation minimized the dangers of perforation, tearing, or hemorrhaging for the woman, notwith- standing how intact removal “makes somepeoplequeasy.”Dr.Mc- Mahonexplainedhisperspective:“Onceyoudecidetheuterusmust beemptied,youthenhave100%allegiancetomaternalrisk.There’s nojustificationtodoingamoredangerousprocedurebecausesome- how this doesn’t offend your sensibilities as much.”3 Twoyearspassedbeforeabortionopponentsinitiatedamovethat brought Haskell and McMahon’s method to widespread public at- tention, a time span which included the enactment of theFreedom of Access to Clinic Entrances (FACE) Act of 1994, the most sig- nificant abortion-rights measure ever passed by the U.S.Congress. In early June 1995, Douglas Johnson, federal legislativedirectorof theNationalRighttoLifeCommittee(NRLC),toldtheWashington Times that Florida Republican Representative Charles T. Canady, chairmanoftheHouseJudiciaryCommittee’ssubcommitteeonthe Constitution,wouldsoonbeintroducingabilltobanwhatJohnson called “partial-birth” or “brainsuction” late-termabortions.4John- son’s announcement, and the Times’ story, marked the very first public appearance of the “partial-birth” label. In later interviews, Keri Harrison Folmar, an assistant counsel to Canady’s subcom- mitteeandformerNRLCstafferwhoactuallydraftedCanady’sbill, recalled how she, Johnson, and Canady came up with the “partial- birth” phrase while also considering a handful of other possible names—“partial-delivery abortion” as well as “brain suction abor- tion”—fortheproceduretheyhopedtoban.“Wecalleditthemost descriptive thing we could call it,” Folmar explained. “We wanted a name that rang true.”5 On June 8, Canady and Nevada Republican RepresentativeBar- bara Vucanovich circulated a “Dear Colleague” letter seeking co- sponsorsforthebill,andonJune14CanadyintroducedH.R.1833, thePartial-BirthAbortionBanActof1995.Itauthorizeduptotwo 3Diane M. Gianelli, Shock-Tactic Ads Target Late-Term Abortion Procedure, American MedicalNews3(July5,1993). 4Joyce Price, Pro-Life Attack on Partial Birth Abortion Bears Fruit, WashingtonTimes A4(June4,1995). 5CynthiaGorney,GamblingwithAbortion,Harper’sMagazine33,38(Nov2004). 4 THESUPREMECOURTREVIEW [2007 years in prison for any doctor who “partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” The very next day Canady convened a subcommittee hearing on hisbillthatfeatureddetailedmedicaltestimonybothforandagainst the measure, and within little more than twenty-four hours the phrase “partial-birth abortion” was in the pages of scores of news- papers all across the United States.6 It represented the beginning of an important turning point in the abortion debate, a strategic innovation which put the abortion-rights proponents who had tri- umphed in Casey and then with FACE constantly on the political defensive for the next twelve years. Canady’s bill passed the House on November 1, 1995, by a vote of 288 to 139, and, after a hearing that featured three additional doctors, the Senate approved an amended version by a margin of 54 to 44 on December 7. The House ratified that measure by 286 to 129 on March 27, 1996, after conducting an additional hearing, but President Clinton vetoed it on April 10. While the House in September mustered an override vote of 285 to 137, a Senate tally of 58 to 40 fell well short of the necessary two-thirds. The following spring, at the outset of the new 105th Congress, after a joint House-Senate hearing that featured six interest-group spokespersons and one physician, the House again approved aPar- tial-Birth Abortion Ban bill, H.R. 1122, which incorporated the samedescriptionofthebannedprocedureasusedinCanady’s1995 measure. The House vote of 295 to 136 on March 20, 1997, was soon followed by Senate passage of a slightly amended bill on a tallyof64to36.TheHouseapprovedthatversioninOctober1997 by 296 to 132, but two dayslaterPresidentClintonagainexercised his veto power. In July 1998, the House overrode the president by 296 to 132, but in September 1998 a Senate roll call of 64 to 36 fell three votes short of an override. In the fall of 1999, the Senate passed S. 1692, a Partial-Birth Abortion Ban bill that featured a revised and expanded description 6In the nation’s premier newspapers, the phrase first appearedin the WashingtonPost on June 14, and two days later in the New York Times. See Kevin Merida, Antiabortion MeasuresDebated;HouseRepublicansPushforNewRestrictionsinSeveralAreas,Washington Post A4 (June 14, 1995); and Jerry Gray, Emotions High, House Takes Up Abortion, New YorkTimesA19(June16,1995).SeealsoTamarLewin,MethodtoEnd20-WeekPregnancies StirsaCorneroftheAbortionDebate,NewYorkTimesA10(July5,1995). 1] SIGNIFICANTRISKS 5 of the procedure it sought to prohibit,7 by a vote of 63 to 34. In April 2000, the House approved a similar bill, H.R. 3660, by 287 to 141, but efforts to reconcile the measures in conference ended once the Stenberg decision was handed down on June 28.8 Two years then passed before action resumed with Ohio Repub- lican Representative Steve Chabot’s introduction of H.R. 4965 on June 19, 2002. In the interim, of course, PresidentClintonhadleft office and George W. Bush had become president. Almost equally important, Chabot’s bill included a fifteen-page, thirty-paragraph section ofcongressional“Findings”aimedatrebutting,andtrump- ing, much of the fact-finding and analysiscontainedintheStenberg majorityopinion.Inparticular,thosefindingsincludedadeclaration that “a partial-birth abortion is never necessary to preserve the health of a woman.”9 In addition, Chabot’s bill also employed a significantly different and more anatomically detailed definition of the targeted procedure. Now a “partial-birth abortion” was one in which a doctor (A)deliberatelyandintentionallyvaginallydeliversalivingfetus until,inthecaseofahead-firstpresentation,theentirefetalhead is outside the body of the mother, or, in the case of a breech presentation,anypartofthefetaltrunkpastthenavelisoutside the body of the mother, for the purpose of performinganovert act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other thancompletionofdelivery, that kills the partially delivered living fetus . . . .10 Threeweekslater,abriefHousehearingheardtwodoctorstestify in favor of the measure, and two weeks after that theHousepassed 7S 1692, 106th Cong, 1st Sess, defined the “partial-birth” procedure as “an abortion in which the person performing the abortion deliberatelyandintentionally(a)vaginally deliverssomeportionofanintactlivingfetusuntilthefetusispartiallyoutsidethebody ofthemother,forthepurposeofperforminganovertactthatthepersonknowswillkill thefetuswhilethefetusispartiallyoutsidethebodyofthemother;and(b)performsthe overt act that kills the fetus while the intact living fetus is partially outside thebodyof themother.” 8The state statute voided by Stenberg, Neb Rev Stat Ann § 28-326(9) (Supp 1999), definedaprohibited“partial-birth”abortionas“deliberatelyandintentionallydelivering intothevaginaalivingunbornchild,orasubstantialportionthereof,forthepurposeof performing a procedure that the person performing such procedure knows will kill the unbornchild.” 9HR4965,107thCong,2dSess,§2(13). 10Idat§3(b)(1). 6 THESUPREMECOURTREVIEW [2007 the bill on a vote of 274 to 151. The Senate did not act on it, and soinFebruary2003,RepresentativeChabotandSenatorRickSan- torum reintroduced the legislation as H.R. 760 and S. 3 inthenew 108th Congress. The Senate passed a slightly amended S. 3 on March 12 by 64 to 33, and, after a very brief, one-doctor hearing on March 25, the House approved H.R.760 by282to 139in early June.Followingaconferencecommitteereport,inOctoberthetwo housesapprovedS.3byvotesof281to142and64to34.President Bush signed the Partial-Birth Abortion Ban Act into law on No- vember 5, 2003.11 II The nine years of public and congressional debate that cul- minated with President Bush signing legislation equivalent to that which President Clinton twice had vetoed demonstrated sustained and overwhelming majority support for the federal criminalization of a medical procedure that the Stenberg majority had concluded wassometimesnecessarytoprotectpregnantwomen’shealth.That looming conflict led reproductive rights litigators to file three sep- arate but coordinated constitutional challenges to PBABA—infed- eraldistrictcourtsinNebraska,NewYorkCity,andSanFrancisco— even before President Bush signed the measure into law.12 In Nebraska, Judge Richard G. Kopf—who previously had presided over the trial in Stenberg—issued a temporary restraining order (TRO) covering the four physician plaintiffs who practiced in his statewithinhoursofthepresident’ssignature.13Thefollowingday, ruling in the New York case filed by the National Abortion Fed- eration, whose members included hundreds of doctors all across the entire country, Judge Richard C. Casey issued a similar TRO whose effect was nationwide.14 11Succinct but comprehensive summary accounts of congressional activity on partial- birthabortionbillsfrom1995through2003appearinbothU.S.HouseofRepresentatives, PartialBirthAbortionBanActof2003,Report108-58,108thCong,1stSess,12–14,and JayAlanSekulow,etal,AmicusBriefoftheAmericanCenterforLawandJustice,etal, GonzalesvCarhart,No05-380(filedMay22,2006),18–25. 12SherylGayStolberg,3SuitsFiledtoBlockanAbortionBillThatBushIntendstoSign, NewYorkTimesA30(Nov1,2003). 13CarhartvAshcroft,287FSupp2d1015(DNeb2003).SeealsoCarhartvAshcroft,292F Supp2d1189(DNeb2003)(continuingthetemporaryrestrainingorderindefinitely). 14NationalAbortionFederationvAshcroft,287FSupp2d525(SDNY2003).Although unreported, an additional TRO also was issued in the San Francisco case. See Planned ParenthoodFederationofAmericavAshcroft,320FSupp2d957,967(NDCal2004). 1] SIGNIFICANTRISKS 7 As judges Kopf and Casey both highlighted,15 PBABA’s most glaringcontradictionwithStenberglayintheact’slackofastatutory exceptionforinstancesinwhichthebannedprocedurecouldprotect a pregnant woman’s health. Writing for the Stenberg majority,Jus- tice Stephen G. Breyer had stated that Nebraska “fails to demon- stratethatbanningD&Xwithoutahealthexceptionmaynotcreate significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances,D&Xwouldbethesafestprocedure.”16Breyerwent on to note that the District Court—Judge Kopf—had “agreedthat alternatives, such as D&E and induced labor, are ‘safe’ but found that the D&X method was significantly safer in certain circum- stances.”17 Observing that “a statute that altogether forbids D&X creates a significant health risk,” the Stenberg majority went on to hold that “where substantial medical authority supports the prop- ositionthatbanningaparticularabortionprocedurecouldendanger women’s health, Casey requires the statute to include a health ex- ception.” This, the majority added, was “simply a straightforward application” of Casey’s own holding.18 However, in an additional concurrence,JusticeO’Connorstatedthat“[i]ftherewereadequate alternativemethodsforawomansafelytoobtainanabortionbefore viability, it is unlikely that prohibiting the D&X procedure alone would ‘amount in practical terms to a substantial obstacle to a woman seeking an abortion,’” the standard declared in Casey.19 OnMarch29,2004,trialscommencedinallthreecasesandlasted between two and three weeks apiece. Each of the three district judgesheardtestimonyfrombetweentwelveandeighteendifferent doctors, and, following the trials, the three judges issued opinions that ran to 58, 79, and 270 pages (Judge Kopf) in the Federal Supplement. All three courts heldPBABAunconstitutional,andall three jurists found its lack of a health exception to be a fatal flaw pursuant to Stenberg and Casey. First to announce her decision was Judge Phyllis J. Hamilton of the Northern District of California, who,inwordsthatdirectlyechoedStenberg,foundthat“intactD&E is in fact the safest medical option for some women in some cir- 15287FSupp2dat1016,287FSupp2dat526. 16StenbergvCarhart,530US914,932(2000). 17Idat934(quoting11FSupp2dat1125–26). 18Idat938. 19Idat950(quoting505USat884). 8 THESUPREMECOURTREVIEW [2007 cumstances” and that “under certain circumstances” it is “signifi- cantly safer than D&E by disarticulation.”20 JudgeHamiltonalsoheldthatPBABA’swording,likethatofthe Nebraska statute struck down in Stenberg, was sufficientlyinclusive to cover nonintact D&Es and thereby violate Casey’s “substantial obstacle” standard,21 and that the statute was unconstitutionally vague,22 but she voiced barely concealed contempt for the medical evidence Congress relied upon to justify PBABA’s lack of a health exception. Summarizing the congressional hearing record from 1995 through 2003, she observed that “over a period of approxi- matelyeightyears,Congressentertainedlivetestimonyfromatotal of eight physicians, six of whom supported the ban.”23JudgeHam- ilton further asserted, with reference to a 1998 opinion article in the Journal of the American Medical Association coauthored by two physicians,oneofwhomhadtestifiedbeforeCongressandtheother of whom was a government witness in all three PBABA trials, that “[m]anyofthecongressional‘findings’mirrorsubstantiallythecon- clusionsreachedinDr.Sprang’sarticle.”24Sheaddedthat“thiscourt indicated at trial that it found the article itself to be lacking in trustworthiness.”25 Looking in particular at congressional activity in 2002–2003, Judge Hamilton concluded that “at the time that it made its findings, Congress did not have before it any new medical evidence or studies not available to both the district court and Su- preme Court in Stenberg, at the times the courts issued their de- cisions.”26 All in all, she found, “Congress’s conclusion that the procedure is never medically necessary is not reasonable and is not based on substantial evidence.”27 InlateAugust2004,JudgeCaseyinManhattanissuedhisdecision 20Planned Parenthood Federation of America v Ashcroft, 320 F Supp 2d 957, 1002 (ND Cal2004). 21Idat971. 22Idat977–78. 23Idat1019.SeealsoNealDevins,TomDeLay:PopularConstitutionalist?81ChiKent LRev1055,1060(2006)(describinghow“[a]nincreasinglyideological,increasinglypo- larizedCongressseeshearingsasstagedeventsinwhicheachsidecancallwitnesseswho willexplaintheirviewstothepublic,”ratherthancall“nonpartisanwitnesses”). 24Id(referencingM.LeRoySprangandMarkG.Neerhof,RationalesforBanningAbor- tionsLateinPregnancy,280JAMA744[1998]). 25Idat1019–20. 26Idat1023. 27Idat1024. 1] SIGNIFICANTRISKS 9 and likewise targeted the inadequacy of Congress’s fact-finding. “Congressdidnotholdextensivehearings,nordiditcarefullycon- sider the evidence before arriving at its findings,” he wrote. “Even the Government’s own experts disagreed with almost all of Con- gress’s factual findings” in their testimony at trial.28 In particular, Judge Casey observed, “[t]here is no consensus that D&X is never medicallynecessary,butthereisasignificantbodyofmedicalopin- ion that holds the contrary.”29 His conclusion was almost identical to Judge Hamilton’s: “Congress’s factfindings were not reasonable and based on substantial evidence.”30 In early September 2004, Judge Kopf rendered the last of the District Court decisions. Much like the other two jurists, he too concludedthat“thecongressionalrecordprovestheoppositeofthe Congressional Findings.”31 In particular, Congress’s assertion that a medical consensus existed that the partial-birth procedure was never necessary to protect a woman’s health “is both unreasonable and not supported by substantial evidence,” Judge Kopf found.32 Indeed,“thetrialevidenceestablishedthatalargeandeminentbody of medical opinion believes that partial-birth abortions provide women with significant health benefits in certain circumstances.”33 Theevidencefurtherdemonstrated“thatCongresswaswrong,and unreasonably so,” in its findings, for “the overwhelming weight of the trial evidence proves that the banned procedure is safe and medicallynecessaryinordertopreservethehealthofwomenunder certain circumstances.” In fact, “the banned procedure is, some- times, the safest abortion procedure to preserve the health of women,” Judge Kopf found.34 The Justice Department appealed all three adverse districtcourt rulingstotheirrespectivecircuitcourtsofappeal,andinJuly2005, an Eighth Circuit panel became the first to rule when it affirmed Judge Kopf’s decision. Quoting from Stenberg, the panel unani- 28NationalAbortionFederationvAshcroft,330FSupp2d436,482(SDNY2004). 29Id. 30Idat488. 31CarhartvGonzales,331FSupp2d805,1012(DNeb2004). 32Idat1015. 33Idat1016. 34Idat1016,1017.JudgeKopfheldtheactunconstitutionalbothforitslackofahealth exception and because it contravened Casey and Stenberg’s “undue burden” standard.Id at1048,1031. 10 THESUPREMECOURTREVIEW [2007 mously held that “[w]e believe the appropriate question is whether ‘substantialmedicalauthority’supportsthemedicalnecessityofthe banned procedure.”35 Thus, “when ‘substantial medical authority’ supports the medical necessity of a procedure in some instances,” the panel concluded, “Stenberg requires the inclusion of a health exception.”36 In late September, the Solicitor General petitionedtheSupreme Court to hear the government’s appeal in Gonzales v Carhart. He asserted that in passing PBABA, the Congress had acted “on the basisofadifferent(andfuller)evidentiaryrecord”thantheStenberg court had had before it.37 In addition, he asserted that Stenberghad establishedthat“thecriticalquestionwaswhetherthestatutebeing challenged would pose ‘significant health risks for women.’”38 In a subsequent reply brief in early December, the Solicitor General suggested that Congress had considered “the latest and best avail- ablemedicalevidence”beforepassingPBABA.39Hefurtherasserted that “the correct inquiry” in the case at hand “is simply whether therewassufficientevidencetosuggestthatCongress’sdetermination was reasonable” when it adopted the statute.40 Before the Court acted on the petition, both the Second and Ninth Circuits issued their decisions on the same day. The Ninth Circuit ruling, written by Judge Stephen Reinhardt, affirmed the District Court’s judgment on all points.41 The Second Circuit de- cision,writtenbyJudgeJonO.NewmanandjoinedinfullbyChief Judge John M. Walker, Jr., featured both an energetic dissent by Judge Chester J. Straub and, more importantly, a perceptive and significant additional concurrencebyJudgeWalker.42Acknowledg- ing how his court was required to follow Stenberg, Judge Walker 35CarhartvGonzales,413F3d791,796(8thCir2005). 36Id at 796, 797. The Eighth Circuit did not reach Judge Kopf’s conclusionthatthe actalsoconstitutedanundueburden.Idat803–04. 37Paul D. Clement, Petition for a Writ of Certiorari, Gonzales v Carhart, No 05-380 (filedSept23,2005),17. 38Idat20(quoting530USat932andaddingemphasis). 39PaulD.Clement,ReplyBriefforthePetitioner,GonzalesvCarhart,No05-380(filed Dec2,2005),3. 40Idat8.Inafootnote,quotingfrom TurnerBroadcastingSystemvFCC,520US180, 195(1997)andaddingemphasis,Clementexplainedthat“thepreciseinquiryiswhether, ‘informulatingitsjudgment,Congresshasdrawnreasonableinferencesbasedonsubstantial evidence.’”Idat8n4. 41PlannedParenthoodFederationofAmericavGonzales,435F3d1163(9thCir2006). 42NationalAbortionFederationvGonzales,437F3d278(2dCir2006).