Partial-Birth abortion jurisprudence

By Robert S. Sargent, Jr.
web posted September 20, 2004

A couple of weeks ago on September 8, U.S. District Judge
(8th Circuit) Richard Kopf became the third Federal Judge to
strike down the Partial Birth Abortion Ban Act of 2003 (the
"Act"), declaring it unconstitutional because, "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. In the absence of an
exception for the health of a woman, banning the procedure
constitutes a significant health hazard to women." In Sec. 2,
Paragraph (2) of the Act, it says, "(partial birth abortion) is
…unnecessary to preserve the health of the mother," a finding
Judge Kopf found "unreasonable."

The Act was passed after several states had passed similar
statutes, but were found unconstitutional. In 1999, two cases in
the 8th Circuit struck down partial-birth laws in Iowa and
Nebraska. The Nebraska case, Carhart v. Stenberg, was
appealed to the U.S. Supreme Court.

This case was decided on June 28, 2000, and the majority
opinion, written by Justice Stephen Breyer, found the Nebraska
statute violated the Constitution. He wrote there were three
principles that determined the issue: "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
which imposes an undue burden on the women's decision before
fetal viability' is unconstitutional. Third, the 'State…may
regulate…abortion except where it is necessary …for the
preservation of the life or health of the mother.'" (Internal quotes
in the first and second principles are from Planned Parenthood v.
Casey. The internal quote in the third principle is from Roe v.
Wade.) The Nebraska statute violated all three principles. The
question is are these rulings good law?

Anybody who wants to read good legal writing should read
Justice Scalia's scathing dissent in Carhart v. Stenberg. Allow me
to quote extensively. (In Planned Parenthood v. Casey a new
Constitutional principle was found: "undue burden." Scalia refers
to this often in the dissent.)

"…what I consider to be an 'undue burden' is different from what
the majority considers to be an 'undue burden' – a conclusion
that can not be demonstrated true or false by factual inquiry or
legal reasoning. It is a value judgment, dependent upon how
much one respects (or believes society ought to respect) the life
of a partially delivered fetus, and how much one respects (or
believes society ought to respect) the freedom of the woman
who gave it life to kill it. Evidently, the five Justices in today's
majority value the former less, or the latter more (or both), than
the four of us in dissent. Case closed. There is not cause for
anyone who believes in Casey to feel betrayed by this outcome.
It has been arrived at by precisely the process Casey promised –
a democratic vote by nine lawyers, not on the question whether
the text of the Constitution has anything to say about this subject
(it obviously does not); nor even on the question…whether the
legal traditions of the American people would have sustained
such a limitation upon abortion (they obviously would); but upon
the pure policy question whether this limitation upon abortion is
'undue' – i.e. goes too far…The Court should return this matter
to the people – where the Constitution, by its silence on the
subject, left it – and let them decide State by State, whether this
practice should be allowed."

The majority opinion in Stenberg is obviously bad law. First of
all, the Justices ignored the principle of a neutral application of
the law. Using a test like "undue burden" means that each Justice
must decide if, in his opinion, there is actually an undue burden,
that is, in the words of Breyer, "(Has) a substantial obstacle
(been put) in the path of a woman seeking an abortion of a
nonviable fetus."? As Scalia points out, this isn't law, this is policy
making. Second, the Ninth Amendment says, The enumeration in
the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people. What could be
clearer? Rights are retained by the people not the Federal
government or some interpretation by "nine (unelected) lawyers."

Which brings us to the question: is the Federal government's
Partial Birth Abortion Ban Act of 2003 Constitutional? After the
three federal judges struck down the Act, Rep. Steve King who
serves in Iowa, a state covered by the 8th Circuit, got so mad
that he suggested to the House Judiciary Committee Chairman
James Sensenbrenner that "On issues like the federal ban on
partial-birth abortions, judges who overturn the will of the people
and their elected representatives must be held accountable for
their decisions," and that they should be brought before the
Committee to explain their decisions.

Brought before the committee, here's what Judge Kopf would
say, "Stare Decisis pal, Casey and Stenberg are the precedents,
and if you don't like the way we rule, go after the big boys." Duh.
And if King brought a non-activist judge or Justice before the
Committee to tell how it should be done, he would say, "The
10th Amendment pal, which says, The powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people
means the Federal government has no business writing statutes
about abortion; the Act is unconstitutional." I'm afraid
Representative King has picked the wrong fight.
 
So, the State laws are constitutional, the Federal law is
unconstitutional, and the jurisprudence is awful.

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right
and can be reached at rssjr@citcom.net.

Enter Stage Right -- http://www.enterstageright.com