550 U.S. 124 (2007), 05-380, Gonzales v. Carhart

Docket Nº:05-380, 05-1382.
Citation:550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480
Opinion Judge:Kennedy, J., Roberts, C. J., and Scalia, Thomas, and Alito, JJ.
Party Name:Alberto R. GONZALES, Attorney General, Petitioner, v. Leroy CARHART et al. v. Alberto R. Gonzales, Attorney General, Petitioner, v. Planned Parenthood Federation of America, Inc., et al.
Case Date:April 18, 2007
Court:United States Supreme Court

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550 U.S. 124 (2007)

127 S.Ct. 1610, 167 L.Ed.2d 480

Alberto R. GONZALES, Attorney General, Petitioner,


Leroy CARHART et al.

Alberto R. Gonzales, Attorney General, Petitioner,


Planned Parenthood Federation of America, Inc., et al.

Nos. 05-380, 05-1382.

United States Supreme Court

April 18, 2007 [*]

Argued November 8, 2006


[127 S.Ct. 1613] Syllabus

Following this Court's Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743, [127 S.Ct. 1614] decision that Nebraska's "partial birth abortion" statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674, and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual second-trimester procedure, "dilation and evacuation" (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska's, is a variation of the standard D&E, and is herein referred to as "intact D&E." The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull.

The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court's factual findings, and that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act's language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits "knowingly perform[ing] a partial-birth abortion . . . that is [not] necessary to save the life of a mother," 18 U. S. C. §1531(a). It defines

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"partial-birth abortion," §1531(b)(1), as a procedure in which the doctor: "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother's] body . . ., or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother's] body . . ., for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus"; and "(B) performs the overt act, other than completion of delivery, that kills the fetus."

In No. 05-380, respondent abortion doctors challenged the Act's constitutionality on its face, and the Federal District Court granted a permanent injunction prohibiting petitioner Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The court found the Act unconstitutional because it (1) lacked an exception allowing the prohibited procedure where necessary for the mother's health and (2) covered not merely intact D&E but also other D&Es. Affirming, the Eighth Circuit found that a lack of consensus existed in the medical community as to the banned procedure's necessity, and thus Stenberg required legislatures to err on the side of protecting women's health by including a health exception. In No. 05-1382, respondent abortion advocacy groups brought suit challenging the Act. The District Court enjoined the Attorney General from enforcing the Act, concluding it was unconstitutional on its face because it (1) unduly burdened a woman's ability to choose a second-trimester abortion, (2) was too vague, and (3) lacked a health exception as required by Stenberg. The Ninth Circuit agreed and affirmed.

[127 S.Ct. 1615] Held:

Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception. Pp. 145-168.

1. The Casey Court reaffirmed what it termed Roe's three-part "essential holding": First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman's life or health. And third, the State has legitimate interests from the pregnancy's outset in protecting the health of the woman and the life of the fetus that may become a child. 505 U.S. at 846, 112 S.Ct. 2791. Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government's legitimate interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the previability abortion

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right exists if a regulation's "purpose or effect is to place a substantial obstacle in the [woman's] path," id., at 878, 112 S.Ct. 2791, but that "[r]egulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose," id., at 877, 112 S.Ct. 2791. Casey struck a balance that was central to its holding, and the Court applies Casey's standard here. A central premise of Casey's joint opinion-that the government has a legitimate, substantial interest in preserving and promoting fetal life-would be repudiated were the Court now to affirm the judgments below. Pp. 145-146.

2. The Act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth. Pp. 146-156.

(a)The Act's text demonstrates that it regulates and proscribes performing the intact D&E procedure. First, since the doctor must "vaginally delive[r] a living fetus," §1531(b)(1)(A), the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus' presentation, ibid., an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered fetus," §1531(b)(1)(B), the "overt act" must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing "the partially delivered" fetus, when read in context, refers to a fetus that has been so delivered, ibid. Fourth, given the Act's scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not "deliberat[e] and intentiona[l], §1531(b)(1)(A). Nor is such a delivery prohibited if the fetus [has not] been delivered "for the purpose of performing an overt act that the [doctor] knows will kill [it]." Ibid. Pp. 146-148.

(b) The Act is not unconstitutionally vague on its face. It satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors "of ordinary intelligence a reasonable opportunity [127 S.Ct. 1616] to know what is prohibited," Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222, setting forth "relatively clear guidelines as to prohibited conduct" and providing "objective criteria" to evaluate whether a doctor has performed a prohibited procedure,

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Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 525-526, 114 S.Ct. 1747, 128 L.Ed.2d 539. Second, it does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903. Its anatomical landmarks "establish minimal guide-lines to govern law enforcement," Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605, and its scienter requirements narrow the scope of its prohibition and limit prosecutorial discretion, see Kolender, supra, at 358, 103 S.Ct. 1855. Respondents' arbitrary enforcement arguments, furthermore, are somewhat speculative, since this is a preenforcement challenge. Pp. 148-150.

(c) The Court rejects respondents' argument that the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. Pp. 150-156.

(i) The Act's text discloses that it prohibits a doctor from intentionally performing an intact D&E. Its dual prohibitions correspond with the steps generally undertaken in this procedure: The doctor (1) delivers the fetus until its head lodges in the cervix, usually past the anatomical landmark for a breech presentation, see §1531(b)(1)(A), and (2) proceeds to the overt act of piercing or crushing the fetal skull after the partial delivery, see §1531(b)(1)(B). The Act's scienter requirements limit its reach to those physicians who carry out the in-tact D&E, with the intent to undertake both steps at the outset. The Act excludes most D&Es...

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