Section Review

Gonzales v. Carhart – the Supreme Court’s recent abortion decision: What it means now and may mean for the future

Introduction
In April 2007, the U.S. Supreme Court announced its ruling in Gonzales v. Carhart, 127 S.Ct. 1610 (2007), its most recent decision on abortion restrictions. The controversial 5-4 decision upheld the Partial-Birth Abortion Ban Act of 2003 (codified at 18 U.S.C. §1531), a federal law prohibiting a specific abortion procedure usually reserved for the second trimester. Justice Anthony M. Kennedy wrote the majority opinion, to which Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined. Justice Ruth Bader Ginsburg wrote the dissenting opinion to which the remaining three justices joined.

Gonzales is the Roberts court’s first foray into the highly charged abortion-jurisprudence battle and the first case decided by the Supreme Court upholding a legislative ban of a specific abortion procedure. Supporters of both the pro-life and pro-choice movements have called Gonzales a landmark decision and expect that the case will have a significant impact on abortion law in the future, from both the legislative and judicial perspectives. This article examines the legislative and judicial paths leading up to Gonzales, reports the highlights of the decision, and discusses both the practical implications of the decision and the future of abortion law.

Background on abortion
Before turning to the Gonzales decision itself, some background on abortion and the Court’s prior decisions is helpful to better understand the import of the Court’s ruling.

According to The New England Journal of Medicine, 35 percent of women in the United States undergo an abortion before they reach 45 years of age, and approximately 90 percent of abortions are performed during the first trimester (0-12 weeks). Only a very small percentage (estimated at less than 1 percent) of abortions are performed after viability begins, which is usually between 24 and 28 weeks.

During the first trimester, most abortions are performed using a method whereby a vacuum tube is inserted into the woman’s uterus and suctions out the fetus. But, once a fetus is approximately 12 weeks old, it has usually grown too large for this procedure to be successful, and surgical options are preferred. The most commonly performed second-trimester (13-27 weeks) abortion procedure is called dilation and evacuation. D&E is a generic term for a variety of surgical procedures and accounts for about 95 percent of all abortions performed from 12 to 20 weeks. Although there are variations of D&E, the procedure usually involves dilating the woman’s cervix, reaching into her uterus and grasping the fetus with forceps and pulling. When the fetus becomes lodged in the cervix, the friction causes the fetus to tear apart. The fetus is then taken out piece-by-piece until it is completely removed. In most instances, the fetus is torn into 10 to 15 pieces, and it bleeds to death. At the end of the procedure, the physician suctions or scrapes out any fetal material remaining in the woman’s uterus.

One particular variation of D&E is termed dilation and extraction, or intact D&E, and it is generally used only between 20 to 24 weeks. What differentiates D&X from D&E is that with D&X, the physician collapses the fetus’ skull (because it is too large to pass through the cervix) and then extracts the fetus intact or largely intact, rather than removing the fetus piece-by-piece. Because some of the fetus’ body parts are outside the woman when the physician performs the specific act that kills the fetus (i.e., collapsing the skull), this abortion method is referred to by some as a “partial birth” abortion. I will refer to this procedure as D&X, as the Supreme Court did in the first case in which it dealt with this procedure, and because, as Ginsburg has noted, the term “partial-birth abortion” is neither recognized in the medical literature nor used by physicians who perform abortions. Estimates of the number of D&X abortions performed annually range between 640 and 5,000.

The path to Gonzales v. Carhart — Roe, Danforth, Casey and Stenberg
In Roe v. Wade, 93 S.Ct. 705 (1973), the Supreme Court first declared the constitutional right to an abortion and it created a framework, divided into the three trimester periods of a pregnancy, by which future abortion restrictions would be evaluated. Three years later, in Planned Parenthood of Central Mo. v. Danforth, 96 S.Ct. 2832 (1976), the Court invalidated a Missouri ban on the then-primary method of second-trimester abortion, in part because it forced women to terminate pregnancies in the second trimester by a method that was more dangerous to their health than the method banned.
Some erroneously predicted that Roe would be overturned by the Supreme Court in 1992 when it decided Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992) and was presented with challenges to a variety of abortion restrictions enacted by the Commonwealth of Pennsylvania, some of which the Court found constitutional and others unconstitutional. In Casey, although the Court did reject Roe’s trimester framework, it reaffirmed Roe’s central holdings that a state may not prohibit abortion prior to viability, and that subsequent to viability, a state may regulate or ban abortion altogether, except where it is necessary for the preservation of the life or health of the mother.

Less than a decade later, the Supreme Court grappled, for the first time, with the constitutionality of a legislative ban on D&X. Stenberg v. Carhart, 120 S.Ct. 2597 (2000). The Nebraska law outlawed “partial birth abortion,” which it defined to mean “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purposes of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.” The statute classified a violation as a Class III felony, authorized a prison term of up to 20 years and provided for an automatic revocation of a doctor’s license to practice medicine in Nebraska. Although the law contained an exception allowing D&X procedures when performed to preserve the mother’s life, it contained no exception for preserving the mother’s health, and made no distinction between pre-viability and post-viability procedures.

In defending the law, Nebraska claimed that it was showing concern for the life of the unborn, preventing cruelty to “partially born children,” preserving the integrity of the medical profession and erecting a barrier to infanticide. Nebraska also argued that no health exception was necessary because safe alternatives to D&X were still available.

The Supreme Court disagreed with Nebraska and held that the statute violated the U.S. Constitution for two reasons: it lacked a constitutionally mandated health exception and imposed an undue burden on a woman’s ability to choose abortion. Justice Stephen G. Breyer wrote the majority opinion, which was joined by Justices Ginsburg and John Paul Stevens, Sandra Day O’Connor and David H. Souter. Kennedy, Thomas, Scalia and Chief Justice William H. Rehnquist dissented, each one penning his own dissenting opinion.

The majority reasoned that three established principles determined the case’s outcome. First, before viability, the woman has a right to choose to terminate her pregnancy. Second, a law designed to further the state’s interest in fetal life that imposes an undue burden on the woman’s decision before fetal viability is unconstitutional. And third, a state may not regulate abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The Court found the lack of a health exception greatly troubling and explained that “since the law requires a health exception in order to validate even a post-viability abortion regulation, it requires, at a minimum, the same in respect to pre-viability regulation.” The Court announced that the governing standard, taken from Casey, requires an exception because a state may not “endanger a woman’s health when it regulates the methods of abortion.”

Significant to its decision, the Court noted that the record demonstrated a lack of medical consensus as to the merits of D&X. Some experts had testified that D&X is in fact safer than D&E because it reduces operating time, blood loss and risk of infection; reduces complications caused by bony fetal parts; reduces damage to the uterus and cervix; prevents the most common causes of maternal mortality; and reduces the chance of adverse consequences from leaving fetal parts in the woman. Other experts testified that D&X offered no safety advantages and was never necessary to preserve the life or health of a woman. The Court found that this disagreement militated in favor of striking down the law: “The uncertainty means a significant likelihood that those who believe the D&X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences.” The Court then held that Casey required the Nebraska law to have a health exception, because “substantial medical authority” supported the proposition that banning D&X could endanger women’s health.
As stated above, the Court also held that the Nebraska law was unconstitutional because it caused an undue burden on a woman’s right to make an abortion decision. It arrived at this conclusion after determining that the language of the statute was so broad and imprecise, in large part because it did not track the medical differences between D&E and D&X, that it could be read to prohibit D&E as well as D&X. As a result, physicians who performed D&E would fear prosecution, conviction and imprisonment under the unclear law, which in turn would create an undue burden upon a woman’s right to make an abortion decision.

In his concurring opinion, Stevens persuasively wrote that the D&X procedure is no “more brutal, more gruesome or less respectful of potential life” than the D&E procedure. He further opined that “the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.”

Even Kennedy and Thomas, who dissented, acknowledged the unpleasantness of D&E. Kennedy described the procedure as causing the fetus to bleed to death as it is “torn limb from limb,” and Thomas characterized D&E as “so gruesome that its use can be traumatic even for the physicians and medical staff who perform it.”

Kennedy’s lengthy dissent is also noteworthy. Foreshadowing his opinion in Gonzales, Kennedy argued that the Nebraska statute was not vague, did not ban D&E and did not need a health exception. He criticized the majority for misapplying Casey, impermissibly substituting its own judgment for that of Nebraska, deciding unnecessary constitutional questions and ignoring the principle that statutes should be interpreted to avoid constitutional difficulties. He also stated that “courts are ill-equipped to evaluate the relative worth of particular surgical procedures,” and castigated the majority for refusing to recognize the state’s “right to declare a moral different between the procedures… where high medical authority is in disagreement.” In addition, Kennedy exhibited his disdain for D&X by saying that D&X “perverts the natural birth process to a greater degree than D&E, and more strongly resembles infanticide,” and his distrust of physicians by saying that any ban which depends on the “appropriate medical judgment” of a physician is no ban at all.

The history of the Partial Birth Abortion Act
In both 1996 and 1997, Congress passed prohibitions on so-called “partial-birth abortions,” but President William J. Clinton vetoed them. After Clinton left office, Congress passed the Partial-Birth Abortion Act of 2003 and President George W. Bush signed it into law.

Under the act, a physician who knowingly performs a “partial-birth abortion” is subject to two years in prison, a hefty fine and monetary damages for any psychological injury caused to the pregnant woman’s husband or parents. A pregnant woman who undergoes the procedure is not subject to any criminal penalty. The act is similar to the Nebraska law struck down in Stenberg in that it permits D&X when necessary to save the life of a pregnant woman, but contains no exception for a D&X necessary to preserve the woman’s health. Many supporters of the Act believed that a health exception could be interpreted so broadly that it would render the legislation superfluous.

The act defines a partial-birth abortion as one in which the doctor “deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

The act contains 14 detailed findings, the last of which has 15 sub-paragraphs. The first finding states that a “moral, medical and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Another claims that “there exists substantial record evidence upon which Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ‘health’ exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health and lies outside the standard of medical care.” Ten of the 14 findings are devoted to discussing the Stenberg decision and arguing that the Supreme Court should review factual findings by Congress with great deference. The findings also describe D&X as involving “piercing of the skull” and “sucking out the brain” and constituting the “killing of a child that is in the process, in fact mere inches away from, becoming a ‘person.’” On the basis of this description, Congress found the procedure akin to infanticide, and contends in yet another finding that “implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.”

The act fails to describe D&E, which, as stated above, is the most common alternative abortion procedure, and a piece appearing in The New York Times described the act as forbidding “doctors from crushing the skull of the fetus, but permit[ing] them to poison and dismember it.”

Congress concludes the findings portion of the act
For these reasons, Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

Nine medical associations, including the American Public Health Association and the American College of Obstetrics and Gynecology, opposed the act because they believe, like some of the experts who testified at the Stenberg trial, that D&X provides safety advantages over all other alternative procedures for some women. The American Medical Association, in contrast, believes D&X is medically unnecessary, but concedes that there is no consensus among obstetricians on this point.

On the day President Bush signed the act into law, LeRoy Carhart, M.D., a physician who performs abortions and was the lead plaintiff in Stenberg, along with several co-plaintiffs, filed suit seeking an injunction against enforcement of the act.

Lower court rulings
Before Gonzales v. Carhart reached the Supreme Court, all three federal district courts and all three circuit courts of appeals that were presented with challenges to the act held that the act was unconstitutional. For the most part, these courts had before them the same medical evidence as contained in the record before the Supreme Court in Stenberg.

In striking down the act, the Eighth Circuit Court of Appeals reasoned that “when substantial medical authority supports the medical necessity of a procedure in some instances, a health exception is constitutionally required,” and “when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.” It then found that the government had not adduced evidence distinguishing the case from Stenberg and never challenged the district court’s conclusion that substantial medical authority supported D&X’s medical necessity. This appellate court indicated it was bound by the Supreme Court’s decision in Stenberg, and thus it declared the act unconstitutional.

Six months later, on Jan. 31, 2006, both the Second and Ninth Circuit Courts of Appeals also held the act was unconstitutional. Like the Eighth Circuit, the Second Circuit found that substantial medical authority “indisputably” and “unquestionably” exists that banning D&X could endanger women’s health, read Stenberg as requiring a health exception under such medical circumstances and held that the act was unconstitutional.

Likewise, the Ninth Circuit fell into step. It noted that women undergo abortions in the second trimester for a variety of reasons, including “newly discovered fetal anomalies and maternal health problems that are created or exacerbated by the pregnancy…primarily because ultrasound and amniocentesis procedures that often detect these medical conditions generally are not available until the second trimester.” This appellate court then held that “we, like every other federal court that has considered the question, conclude that both the Constitution and the law as established by the Supreme Court require us to hold the act unconstitutional.” In fact, the Ninth Circuit held the act unconstitutional for three distinct reasons: (1) it lacked a health exception, (2) it imposed an undue burden on women’s ability to obtain pre-viability abortions, and (3) it was unconstitutionally vague because it deprived physicians of fair notice of what it prohibits and encouraged arbitrary enforcement.

The Ninth Circuit also surmised that Congress deliberately omitted a health exception from the act in an effort to persuade the Supreme Court to reverse Stenberg. To support this point, the court quoted a 2003 Senate-floor speech by now former U.S. Sen. Richard Santorum, the lead sponsor of the act in the U.S. Senate, as saying, “We are here because the Supreme Court defended the indefensible [in Stenberg]…We have responded to the Supreme Court. I hope the justices read this record because I am talking to you…[T]here is no reason for a health exception.” As detailed below, the Supreme Court justices would indeed read the congressional record and agree that there was no constitutional need for a health exception, although they would dispute the veracity of some of Congress’s findings.

Gonzales — The majority opinion
Although the three district courts and the three courts of appeals unanimously found the act to be unconstitutional, the act met a different fate with the Supreme Court and its two newest members. Since the Court decided Stenberg, Roberts filled the vacancy left by Rehnquist after he passed away in 2005, and Alito replaced O’Connor, who retired in 2006.

Kennedy, who wrote the majority opinion in Gonzales, was appointed to the Supreme Court in 1988 by Ronald Reagan, and is often called “the swing vote.” This tag, which had been worn by O’Connor before she retired, has been pinned on Kennedy because in many cases he casts the deciding vote that swings the balance of the Court in one direction or another. Indeed, he swung the Stenberg minority into the majority position in Gonzales.

Although the parties advanced similar arguments in Gonzales as they had in Stenberg, the Court was more receptive to those by the defenders of the D&X ban the second time around and found the act to have cured the constitutional infirmities that riddled the Nebraska law at issue in Stenberg. First, the Court held that the federal act is not unconstitutionally vague, and thus does not cause an undue burden on women seeking an abortion, because it sets forth clear guidelines as to what conduct is prohibited, and provides objective criteria to evaluate whether a doctor has performed a criminalized procedure. The act earns these favorable appraisals because (1) it explicitly differentiates D&X and D&E using anatomical landmarks, (2) requires a physician to perform an overt act that kills the fetus after it has been partially delivered, and (3) has a scienter requirement.
As to the second area of improvement, the act’s greater precision in differentiating D&X and D&E assuaged the Court’s concern voiced in Stenberg that the ban was written in such a broad fashion that it could be read to prohibit D&E as well. As to the third area of improvement, the Court places great emphasis on the scienter requirement in rejecting the challengers’ argument that a physician could inadvertently perform a D&X and unwittingly violate the law. The Court explains that under the act, a doctor who intends to perform a D&E and remove the fetus in parts, but winds up performing a D&X, will not have the requisite intent to incur criminal liability. Together, the three improvements persuaded the Court to dismiss the contention that the act placed an undue burden on women seeking an abortion, and the opinion then turns to the stronger attack on the act — its lack of a health exception.

The Supreme Court first proclaims that it is not bound by Congress’s findings, and in fact disagrees with several of them, including the one that no health exception is necessary. Another particularly relevant finding the Court disputes is the one that provides that medical consensus exists that D&X is never medically necessary. In fact, at least 22 physicians and a number of professors of obstetrics and gynecology from many of the nation’s leading medical schools testified before Congress that D&X is necessary in at least some circumstances.

Although the Court refuses to completely defer to and blindly follow Congress’s conclusion that a health exception is not necessary, the Court analyzes the health-exception issue differently in Gonzales than it had in Stenberg and arrives at the same end result as Congress did. More specifically, despite conceding that there was evidence that D&X may be the safest method of abortion, and that “there is documented medical disagreement whether the act’s prohibition would ever impose significant health risks on women,” the Court abandons its belief that the lack of a medical consensus is a fatal blow to a legislative ban of D&X. Furthermore, the Court adopts the opposite view and says that state and federal legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

The Court reasons that the division of medical opinion over whether the act’s prohibition creates significant health risks yields a sufficient basis to conclude that the act is not unconstitutional when it is attacked facially. The dissenters call this holding “bewildering” and defiant of the Court’s longstanding precedent affirming the necessity of a health exception.

The majority opinion also repudiates the type of challenge — facial rather than as-applied — the plaintiffs brought to the act. Interestingly, the Court expressed no similar vexations in either Danforth or Stenberg where it embraced the facial challenges asserted to bans on particular abortion procedures. The dissenters find this holding especially “perplexing,” given the Court’s declaration in Stenberg that the Nebraska act was facially unconstitutional for not having a health exception, and call this holding a grave mistake because it jeopardizes women’s health and places doctors in an “untenable” position by risking criminal prosecution if they “exercise their best judgment as to the safest medical procedure for their patients.” Nevertheless, by limiting its holding to rejecting the facial attack on the act, the Court does leave open future as-applied challenges to the law.

Notably, Kennedy’s opinion on behalf of the Court’s majority spotlights emotions not discussed in Stenberg, namely, love, regret and depression. For example, Kennedy writes that “[r]espect for human life finds an ultimate expression in the bond of love the mother has for her child,” and that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.” He also comments that it is “self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns [how the D&X procedure was performed on her child].” As discussed in greater detail below, statements such as these draw particular ire from Ginsburg in her dissent.

Kennedy claims that the majority’s decision is faithful to Casey: “Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.” The dissent impugns this argument as well.

Gonzales — Thomas’ concurring opinion
In his dissenting opinion in Stenberg v. Carhart, Thomas described the Court’s abortion jurisprudence as a “particularly virulent strain of constitutional exegesis.” He continues his attack on the Court’s prior rulings in abortion cases in his four-sentence concurring opinion in Gonzales in which he reiterates his view that “the Court’s abortion jurisprudence, including Casey and Roe…, has no basis in the Constitution.” Very curiously, he also notes that the “exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” One cannot help but wonder whether Thomas might be persuaded, in future cases, that federal abortion regulations run afoul of the Commerce Clause.

Scalia joined Thomas’ concurrence, and the two continue to be the Court’s staunchest supporters of abortion restrictions. In his dissenting opinion in Stenberg, Scalia stated that Casey must be overruled and wrote, “I am optimistic enough to believe that one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu [upholding internment of Americans of Japanese descent during World War II] and Dred Scott [rejecting a slave’s claim for freedom and holding men of the “African race” are not citizens of the United States and therefore cannot bring suit in U.S. courts].” Because Gonzales may have relegated Stenberg to the annals of irrelevant decisions, Scalia’s hopes may have been realized in just seven short years. Scalia, however, chose not to author a separate concurring opinion in Gonzales expressing his thoughts on this issue.

The fact that neither Alito nor Roberts joined Thomas’ concurrence may indicate that the two newest members of the Court are not prepared to go as far as overruling Roe. On the other hand, their silence may also simply indicate a belief that there was no need at this time for them to disclose their opinions.

Gonzales — Ginsburg’s dissent
It is extremely difficult, if not impossible, to reconcile the Supreme Court’s ruling in Gonzales with its statement in Stenberg that “a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception.” Therefore, although Gonzales does not explicitly overrule Stenberg, there is a strong argument that it effectively does so for at least the part of Stenberg requiring a health exception.

Ginsburg wrote a scathing dissent, to which Stevens, Souter and Breyer joined, which acknowledges the significant difficulty in reconciling the decisions. In the dissent, she calls the majority decision “alarming,” berates it as dishonoring precedent and not taking Casey and Stenberg “seriously,” and describes the Court’s justification for upholding the act “flimsy and transparent.”

In addition to Casey and Stenberg, Ginsburg relies on Danforth for precedence and summarizes the Court’s ruling in Gonzales as upholding a law that does nothing to preserve fetal life, but bars a woman from choosing a procedure her doctor reasonably believes will best protect her. She restates the medical evidence establishing the safety benefits of D&X, noting that it fills hundreds and hundreds of pages of oral testimony, and argues that the act “scarcely” furthers its claimed interest in protecting the life of a fetus, because “the law saves not a single fetus from destruction.”

In response to the majority’s invocation of the emotional harm which may befall women who undergo abortions and the implicit contention that the act serves to protect women, Ginsburg retorts that “this way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” She explains that “eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them,” and blasts the majority for depriving women of the right to make an autonomous choice.

In her concurring opinion in Stenberg, Ginsburg referenced an observation by Seventh Circuit Court of Appeals Chief Judge Richard A. Posner that legislators were prohibiting D&X, not because of any belief that it is a crueler or more painful or more disgusting method of terminating a pregnancy, but because they sought to “chip away at the private choice shielded by Roe v. Wade.” Ginsburg then echoes this belief in her Gonzales dissent, saying that the majority’s defense of the act “cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court.” Indeed, she finds “the Court’s hostility to the right Roe and Casey secured is not concealed.”

Gonzales — the Alito and Roberts effect
Legal analysts who have addressed the issue of how the Supreme Court’s composition affects its rulings on abortion have concluded that the replacement of Chief Justice Rehnquist with Chief Justice Roberts will not have a significant impact on future rulings. This was quickly born out in Gonzales. Given that Rehnquist dissented in Roe and Stenberg, he almost certainly would have voted with the majority in Gonzales, like Roberts did, had he still been on the Court. The substitution of Alito for O’Connor, however, most probably turned the Stenberg minority into the Gonzales majority, because O’Connor would have likely voted against the act, given that in Stenberg she voted with the majority and wrote a concurring opinion emphasizing the constitutional necessity of health exceptions in abortion-regulation legislation. Alito’s appointment, therefore, had an immediate, weighty impact on the Court’s abortion jurisprudence.

More changes to the Court’s composition?
Stevens, who has been a member of the Supreme Court for more than 30 years, is now 87 years old, and there is speculation that he may retire soon. Although he was appointed by a Republican president, Gerald R. Ford, he is often described as a liberal justice, and he voted against the abortion restrictions in both Stenberg and Gonzales. Should he retire before the end of President Bush’s term, or while another president who disfavors abortion is in office, abortion-rights proponents may find the Court even less responsive to their arguments in the future than the Court was in Gonzales.

Practical implications of Gonzales v. Carhart
While the general consensus is that Gonzales signals a major change in direction on abortion by the Supreme Court, the case also creates a number of practical quandaries for women seeking abortions and their physicians. For example, will women who are advised that D&X is the safest procedure for them forego that option and undergo a D&E (or other procedure), seek a physician willing to perform a D&X and risk prosecution, pursue as-applied constitutional challenges to the act, or decide not to go forward with the abortion?

Moreover, although the Supreme Court did leave open as-applied challenges to the act, the practical reality is that there will be few, if any, brought. A pregnant woman and her physician would likely not determine that a D&X would be beneficial until late in the second trimester, allowing for very little time for a lawsuit to run its course through the courts, due to the inherent time constraints involved with litigation, before the window of opportunity for the abortion had closed. As Ginsburg laments in her dissent in Gonzales, “A woman suffering from medical complications needs access to the medical procedure at once and cannot wait for the judicial process to unfold.”

Physicians who perform abortions also face certain dilemmas created by the Court’s ruling. Now, when a physician determines that a D&X is the safest and most prudent procedure for the patient, how is that physician to reconcile choosing between obeying the law and treating the patient in the safest manner? Will that physician even counsel a patient that D&X is an option to D&E?

In an article published on the Web site of The New England Journal of Medicine, Michael F. Greene, M.D., a professor of obstetrics, gynecology and reproductive biology at Harvard Medical School, wrote that the ruling “creates an intimidating environment surrounding pregnancy terminations at more advanced gestational ages” and “lacking confidence in the judicial system, physicians may choose to avoid performing second-trimester surgical abortions, thus restricting access to them, perhaps even if the mother’s life is in jeopardy.” Others have similarly remarked that the decision will have a “chilling effect” on physicians’ decision-making, given the prospect of incarceration and large financial repercussions. Dr. Carhart would agree, and has predicted that “most physicians are not going to risk their careers to prove a woman’s condition is life-threatening.”

A similar adverse effect resulted from the case of Dr. Kenneth Edelin, a Massachusetts physician who was indicted for and convicted of manslaughter after he performed an abortion in 1973, eight months after the Supreme Court decided Roe. Edelin is renowned for having served as chairman of the Department of Obstetrics and Gynecology at Boston University School of Medicine and chairman of the board of Planned Parenthood Federation of America, the largest private family-planning agency in the United States. But at the time of his prosecution, he was only a resident in obstetrics and gynecology. Edelin recalls that “Once I was indicted, hospitals up and down both coasts stopped performing second-trimester abortions.” The Massachusetts Supreme Judicial Court eventually reversed his conviction and acquitted him, but not before the case had such a wide-reaching impact.

What the future of abortion law may hold
A recent article in The New York Times reports that “only some 3,200 of the 1.3 million abortions performed annually in the United States involve the banned procedure.” Because the number of D&X procedures performed is low and alternative procedures are still available, the ruling may truly impact only a relatively small number of women.

Nevertheless, both sides of the abortion debate have proclaimed the great significance of the decision. Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed an amicus brief in support of the act, commented after the decision that “this is a monumental victory for the preservation of human life.” On the opposing side, Nancy Northup, president of the Center for Reproductive Rights, which was one of the act’s challengers, said, “It took just a year [for the Roberts Court] to overturn three decades of Court precedent.”

There is no denying that abortion-foe lawmakers have been active and unthwarted by prior Supreme Court rulings striking down various restrictions over the last 30 years. For example, in early 2006, the South Dakota Legislature went so far as to pass a bill making it a felony for doctors to perform any abortion except to save the life of a pregnant woman. The bill was designed to challenge Roe, and was signed into law by the governor of South Dakota. But opponents of the law successfully forced a referendum, and in the November 2006 statewide vote, South Dakotans rejected the ban and repealed the law.

Now, with a victory in their pockets from the Gonzales case, pro-life advocates will likely press state legislators to draft laws that will revive “partial-birth abortion” laws and further narrow women’s abortion rights, and Gonzales will undoubtedly embolden state legislatures to craft further abortion restrictions. Indeed, some states are already considering requiring a doctor to show a pregnant woman an ultrasound image of the fetus before proceeding with an abortion.

On the national front, as expected, President Bush was pleased with the ruling, saying that “the Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected by law.”

Thereafter, at the first debate among Republican Party candidates for the presidency, nine of the 10 presidential hopefuls voiced their agreement with the proposition that the day Roe is repealed would be a “good day for America.” Three of the candidates also attended the National Right to Life Committee’s 2007 convention, vying for the organization’s support. At that event, U.S. Sen. Sam Brownback promised that if elected president, he would appoint the next Supreme Court justice who would form the majority needed on the Court to overturn Roe.

On the other side of the political fence, U.S. Sen. Barack Obama teamed with Ginsburg and described the ruling as signaling “an alarming willingness on the part of the conservative majority [on the Supreme Court] to disregard its prior rulings respecting a woman’s medical concerns and the very personal decisions between a doctor and patient.”

It is clear that the next appointment to the Supreme Court, regardless of which president makes it and who is replaced, will have a significant impact on the future of abortion law, because the Court has been so closely divided in its recent decisions on abortion.

Conclusion
In Stenberg, the Supreme Court described the two sides of the abortion debate as “virtually irreconcilable points of views,” and Scalia likened the Court to abortion umpires. These descriptions are no less accurate seven years later, and although many describe Gonzales as a watershed decision and the first meaningful setback for the pro-choice movement after the Supreme Court decided Roe, many chapters of the abortion legal saga remain unwritten.

©2014 Massachusetts Bar Association