The National Pulse

Facing the Facts


On the day after the Nov. 7 midterm elections, the U.S. Su­preme Court will hear arguments in a case that will re­veal whether a change on the bench switches the outcome on a ma­jor abortion issue.

Gonzales v. Carhart, No. 05 380, tests the constitutionality of the 2003 federal Partial Birth Abortion Ban Act. The measure makes it a crime for doctors who perform second trimester abortions to deliver much of the fetus before killing it.

But the case before the court raises an issue that could affect future legal battles involving medicine and health: When a medical matter is in dispute, whose conclusions deserve greater weight–those of members of Congress or those of federal trial judges?

Six years ago, the justices struck down a nearly identical state ban on the same procedure in a lawsuit brought by the same plaintiff, Dr. Leroy Carhart of Bellevue, Neb. Stenberg v. Carhart, 530 U.S. 914. The vote was 5-4, with Justice Sandra Day O’Connor in the majority.

Then, the court said that abortion may not be regulated in a way that threatens the life or health of the patient, and that “substantial medical authority” confirmed that banning the disputed procedure “could endanger women’s health.”

Undeterred, Congress took up the issue and held hearings to refute the conclusions the court had adopted. It declared that “no credible medical evidence” shows this disputed abortion procedure is safer than other available methods, and that “partial birth abortion is never medically indicated to preserve the health of the mother.”

In 2004, U.S. District Judge Richard Kopf held a two week trial in Omaha, Neb., to hear testimony from 23 physicians, many of them experts in obstetrics and gynecology from some of the nation’s leading medical schools, including Columbia, Yale, Northwestern and Cornell. Kopf found their testimony contradicted Congress’ conclusion that the disputed abortion procedure is “never medically indicated” to preserve a woman’s health.

He issued a 474-page opinion and found “the overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances.”

The judge enjoined the federal law from being enforced. The 8th U.S. Circuit Court of Appeals at St. Louis upheld that order and said the Stenberg decision was a binding precedent on the lower courts.

A second judge in San Francisco conducted a trial of medical experts and also concluded the new ban, if enforced, would jeopardize the health of some women who seek abortions. The San Francisco based 9th U.S. Circuit Court of Appeals upheld that decision, and the Supreme Court agreed to hear the government’s appeal in that case as well. Gonzales v. Planned Parenthood, No. 05 1382. Both cases will be heard the same morning.

Congressional Diagnosis

In arguing for the new federal law, U.S. Solicitor General Paul Clement alluded to the congressional hearings held after Stenberg and said legislatures, not judges, are in a better position to decide the facts of such a medical controversy.

“Congressional findings on constitutionally relevant factual issues are entitled to great deference,” Clement wrote in his brief to the court. The dispute over abortion procedures “concerns complex medical matters as to which courts lack any particular institutional expertise,” Clement wrote. He cited one Prohibition era precedent, Lambert v. Yellowley, 272 U.S. 581 (1926), which rejected the claim that physicians could prescribe alcohol as medicine for some patients for whom they believed it was medically necessary. Congress had already decided alcohol had no medicinal uses, the court said then.

But former Solicitor General Walter Dellinger says Congress may also lack the special “institutional expertise” to make decisions on medical controversies.

“The notion of Congress making medical judgments looks different after the Terri Schiavo case, where you had members making medical diagnoses from the floor of the Senate,” he says, referring to legislators’ reaction to the case of the Florida woman who had been in a persistent vegetative state for more than a decade. When the Florida courts upheld her husband’s wish to have her feeding tube removed, then House Majority Leader Tom DeLay, R Texas, and Senate Majority Leader Bill Frist, R Tenn., led the move in Congress to intervene and to urge federal courts to reopen her case.

Frist, a heart surgeon, said he had watched a videotape of Schiavo and concluded the Florida judges were wrong to describe her as being essentially brain dead. Despite the legislation signed by President Bush, the federal courts–including the Supreme Court–refused to reopen Schiavo’s case, and she died March 31, 2005.

How will justices split?

Unlike President Clinton, who had vetoed a similar federal “partial birth” ban, President Bush signed the federal ban into law. And last year, he chose Justice Samuel A. Alito Jr. to replace O’Connor. Alito’s vote could tip the outcome in favor of upholding the ban. Indeed, Alito’s backers, as well as those who opposed him, will be greatly surprised if he does anything other than that.

The court’s four strong supporters of abortion rights – Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer–voted to strike down Nebraska’s ban on the disputed abortions, and they are almost certain to do the same with the federal ban. Justices Antonin Scalia and Clarence Thomas said Roe v. Wade should be overturned, and they strongly dissented in the Nebraska case six years ago. Their votes are not in doubt.

Justice Anthony M. Kennedy surprised many when he voted to uphold the basic right to abortion in 1992. Planned Parenthood v. Casey, 505 U.S. 833. However, he read his dissent from the bench six years ago when the court struck down the state ban on late term abortions. He said there were “critical moral differences” between the available abortion methods, and the law may demand that doctors “refrain from using the natural delivery process to kill the fetus.”

Kennedy’s strong dissent suggests the outcome in the new cases depends on Bush’s two appointees: Alito and Chief Justice John G. Roberts Jr. Neither has much of a public record on the abortion issue, but both are believed to have seen the Roe v. Wade ruling as a mistake. Friends and supporters said last year they were unsure the two would join Scalia and Thomas in seeking to overturn the abortion right entirely, but virtually all agreed they would uphold stricter regulation of abortion.

Senate Democrats and Judiciary Committee Chairman Arlen Specter, a supporter of the abortion right, pressed Roberts and Alito during their confirmation hearings to say they stand by the court’s precedents and would defer to fact finding by Congress. So, regardless of how Roberts and Alito vote in the pending cases, the senators are bound to be disappointed.

Legislators and Experts

Meanwhile, opponents of abortion, including members of Congress, have called this procedure “gruesome and inhumane” and said it “blurs the line between abortion and infanticide.” Those words are in the legislation, and they are highlighted in Clement’s brief.

However, some university medical experts and doctors who perform abortions, including Carhart, say an intact removal reduces the risk of bleeding and infection, and is, therefore, a safer method of performing abortions between the 14th and 20th weeks of pregnancy.

After the 20th week, a fetus is large enough, Carhart said in a 2004 interview, that he can safely inject it with a drug that stops the heart before the abortion procedure begins. Before that time, however, it is too risky to try to inject the tiny fetus because the needle could injure the woman, Carhart has said.

The government’s brief in defense of the law stresses that the procedure does not affect “standard D&E abortions,” referring to the dilation and evacuation procedure whereby doctors remove the fetus in pieces.

But, says Priscilla Smith, a lawyer for the Center for Reproductive Rights in New York City who represents Carhart, “ironically, this means that under this law, it would be easier for doctors to perform later abortions rather than earlier ones.”

She admits that the campaign against the so called partial birth procedure has achieved success in the arena of public opinion even as it failed in the courts. Opponents “have used the language of ‘saving babies’ and ‘live births,’ and they have successfully deceived the public about what’s at issue,” she says.


David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.


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