Gonzales v. Carhart

Gonzales v. Carhart, 550 U.S. ___ (2007), is a United States Supreme Court case which upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of LeRoy Carhart that struck down the Partial-Birth Abortion Ban Act. Also before the Supreme Court was the consolidated appeal of Gonzales v. Planned Parenthood from the United States Court of Appeals for the Ninth Circuit, which had struck down the Partial-Birth Abortion Ban Act.

The Supreme Court's decision, handed down on April 18, 2007, upheld the federal ban and held that it did not impose an undue burden on the due process right of women to obtain an abortion, "under precedents we here assume to be controlling," such as the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey. This case distinguished but did not reverse Stenberg v. Carhart (2000), in which the Court dealt with similar issues.

History of case
The Partial-Birth Abortion Ban Act was signed into law by President Bush on November 5, 2003, and was immediately challenged. Three different U.S. district courts, the Northern District of California, the Southern District of New York, and the District of Nebraska declared the law unconstitutional. Federal District Judge Phyllis Hamilton of California ruled it unconstitutional on June 1, 2004 in Planned Parenthood v. Ashcroft. New York District Judge Richard C. Casey also found the Partial Birth Abortion Ban Act unconstitutional, as did U.S. District Judge Richard Kopf in Nebraska.

The federal government appealed the district court rulings, first bringing Carhart v. Gonzales before a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit. The panel unanimously upheld the ruling of the Nebraska court on July 8, 2005. Finding that the government offered no "new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg," they held that the Partial-Birth Abortion Ban Act is unconstitutional because it lacks an exception for the health of the woman.

Attorney General Gonzales petitioned the U.S. Supreme Court to review the Eighth Circuit decision on September 25, 2005. Meanwhile, the Ninth Circuit also found the law unconstitutional, as did the Second Circuit (with a dissent), issuing their opinions on January 31, 2006. The Supreme Court agreed to hear the Carhart case on February 21, 2006, and agreed to hear the companion Planned Parenthood case on June 19, 2006.

Oral arguments
Oral arguments in this case (as well as its companion case) occurred on November 8, 2006. U.S. Solicitor General Paul Clement, presented arguments for the federal government and Priscilla Smith presented arguments for Dr. Carhart et al. U.S. Solicitor General Paul Clement also presented arguments for the federal government in the companion case of Gonzales v. Planned Parenthood. Eve Gartner presented arguments for Planned Parenthood. The Supreme Court has made available audio of the oral arguments, in both Carhart and Planned Parenthood.

Decision
Justice Anthony Kennedy wrote for the Court that the respondents had failed to show that Congress lacked power to ban this abortion procedure. Chief Justice John Roberts along with Justices Samuel Alito, Clarence Thomas, and Antonin Scalia agreed with the Court's judgment, and they also joined Kennedy's opinion.

The Court left the door open for as-applied challenges, citing its recent precedent in Ayotte v. Planned Parenthood of New England. According to Washington Post reporter Benjamin Wittes, "The Court majority, following the path it sketched out last year in the New Hampshire case, decided to let the law stand as a facial matter and let the parties fight later about what, if any, applications need to be blocked."

The Court decided to "assume ... for the purposes of this opinion" the principles of Roe v. Wade and Planned Parenthood v. Casey. The Court then proceeded to apply those "principles accepted as controlling here."

The Court said that the lower courts had repudiated a central premise of Casey — that the state has an interest in preserving fetal life — and the Court held that the ban was narrowly tailored to address this interest. Relying deferentially on Congress's findings that this intact dilation and extraction procedure is never needed to protect the health of a pregnant woman, Kennedy wrote that a health exception was therefore unnecessary. And, where medical testimony disputed Congress's findings, Congress is still entitled to regulate in an area where the medical community has not reached a "consensus" — a finding at odds with the lower courts in this case.

The majority opinion held that "ethical and moral" considerations, including an interest in fetal life, represented "substantial" state interests which (assuming they do not impose an "undue" burden) could be a basis for legislation at all times during pregnancy, not just after viability. Thus, the Court believed that the pre-viability/post-viability distinction was not implicated in Carhart.

In addition, the Court distinguished the Stenberg case, which previously struck down Nebraska's partial-birth abortion law. The Court held that the state statute at issue in Stenberg was more ambiguous than the later federal statute at issue in Carhart.

The majority opinion in Gonzales v. Carhart did not discuss the constitutional rationale of the Court's prior abortion cases (i.e. "due process"). However, the majority opinion disagreed with the Eighth Circuit that the federal statute conflicted with "the Due Process Clause of the Fifth Amendment [which] is textually identical to the Due Process Clause of the Fourteenth Amendment."

Concurrence
Justice Thomas filed a concurring opinion, joined by Justice Scalia, saving for another day the issue of whether Congress had sufficient power under the Commerce Clause to enact this ban. The Commerce Clause was also mentioned in the opinion of the Court, and was the only clause of the Constitution mentioned explicitly by the opinions in this case.

The concurrence also stated that Justices Thomas and Scalia joined the Court's opinion "because it accurately applies current jurisprudence." And, the concurrence reiterated their view that that current abortion jurisprudence "has no basis in the Constitution."

Dissent
Justice Ruth Bader Ginsburg dissented, joined by justices David Souter, John Paul Stevens, and Stephen Breyer, contending that the ruling was an "alarming" one that ignored Supreme Court abortion precedent. Justice Ginsburg's dissent was the only opinion in this case that mentioned the word "privacy". Justice Ginsburg, referring in particular to Planned Parenthood v. Casey, sought to ground the Court's abortion jurisprudence based on concepts of personal autonomy and equal citizenship rather than the Court's previous privacy approach: "Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."

Justice Kennedy's opinion in Carhart did not touch upon the question of whether the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey were valid. Dissenting Justice Ginsburg characterized this aspect of the Court's opinion as follows: "Casey's principles, confirming the continuing vitality of ‘the essential holding of Roe,’ are merely ‘assume[d]’ for the moment ... rather than ‘retained’ or ‘reaffirmed.’"

Disagreement Among Pro-Lifers
A very public disagreement occurred between stringent pro-life groups (Colorado Right to Life, American Life League, Human Life International, etc.) and those pro-life groups that prefer an incremental approach to reducing abortion through regulation and restrictions (National Right to Life, Family Research Council, Americans United for Life, etc.).

The stringent groups noted that the ruling defended "the abortion right", and indicated that the Partial Birth Abortion Ban was ruled constitutional only because it "does not on its face impose a substantial obstacle" to the abortion right. They went on to say that if the ban (or any future legislation) had posed a substantial obstacle to the abortion right, then it would be unconstitutional.

Stringent groups also pointed to language in the Gonzales v. Carhart ruling which encouraged physicians to use alternative methods (some of them spelled out explicitly) to perform abortions on the same babies who would have otherwise been subject to Partial Birth Abortion (in other words, the same late term babies will be killed using another procedure). As a result, these groups say that no lives will be saved by the ban.[]

Although Focus on the Family chairman James Dobson spoke in favor of the ban, and the ruling, he did note that the ban "does not save a single human life."[]

As a result of these assessments and the indication that, even after the two Supreme Court appointments by President Bush, the court would vote to uphold Roe v. Wade, these pro-life groups believe that the Gonzales v. Carhart ruling represents a significant defeat for the pro-life cause, and should not be celebrated as a victory. They, instead, recommend pursuit of the principle of personhood for unborn children.

In retaliation for its position, National Right to Life dis-affiliated Colorado Right to Life in 2007.