Petitioners Brief — Gonzales v. Carhart

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

In the Supreme Court of the Bnited States

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

LEROY CARHART, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CiRCUIT

BRIEF FOR THE PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor Generai

GreGorY G. KATSAS

—-"

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

by = LUTHY MILLER

Lepariment

Waskington,

(202) 514-2217

SR SS

BEST AVAILABLE COPY

0. 20600-0001

QUESTION PRESENTED

The Partial-Birth Abortion Ban Act of 2003 (the Act), Pub.

L. No. 108-105, 117 Stat. 1201 (18 U.S.C. 1531 (Supp. III

2003)), prohibits a physician from knowingly performing a

“partial-birth abortion” (as defined in the statute) in or affect-

ing interstate commerce. Act § 3, 117 Stat. 1206-1207. The

Act contains an exception for cases in which the abortion is

necessary to preserve the life of the mother, but no corre-

sponding exception for the health of the mother. Congress,

however, made extensive factual findings, including a finding

that “partial-birth abortion is never medically indicated to

preserve the health of the mother.” § 2(14)(O), 117 Stat. 1206.

The question presented is as follows:

Whether, notwithstanding Congress’s determination that

a health exception was unnecessary to preserve the health of

the mother, the Partial-Birth Abortion Ban Act of 2003 is

invalid because it lacks a health exception or is otherwise un-

constitutional on its face.

(1)

PARTIES TO THE PROCEEDING

Petitioner is Alberto R. Gonzales, Attorney General of the

United States. Respondents are Leroy Carhart, William G.

Fitzhugh, William H. Knorr, and Jill L. Vibhakar.

(11)

TABLE OF CONTENTS

Page

SN TINY ako ecch bcp é0.cenk bh Cewk bis ovoid Cates Ghupee 1

PI edict Kuni abe Sev ekedeenexhigke tub vaeeees ]

Statutory provisions involved ................0-eeeeeeee 1

NES oc eaitink ig Gabe ode y ined Adah Orde has aan eew's 2

FG GES PN LE RAD SIT PT 9

Argument:

The Partial-Birth Abortion Ban Act of 2003 is

COMMEIIURIUUNE OU GTO oi ease Soc eele £08k 12

I. The absence of a health exception does not

render the Act facially invalid ................ 13

A. A statute that regulates abortion, but

lacks a health exception, is not

facially invalid unless it would create

significant health risks, and thereby

impose an undue burden, in a large

fraction of its applications ................ 14

B. When analyzed under the proper

standard, the record overwhelmingly

supports Congress’s judgment that

no health exception was required .......... 20

1. Congressional findings on consti-

tutionally relevant factual issues

are entitled to great deference ......... 21

2. Congress’s findings on the medi-

cal necessity of partial-birth abor-

tion are entitled to deference .......... 24

(IIT)

Table of Contents—Continued: Page

3. Congress’s findings on the

medical necessity of partial-birth

abortion are supported by

substantial evidence ...............++. 30

C. Even assuming that partial-birth

abortion has marginal health

advantages in some cases, a statute

that prohibits partial-birth abortion

does not impose an undue burden on

a woman’s access to an abortion ........... 40

D. To the extent that the Court believes

that Stenberg compels a different

result, it should be overruled .............. 43

II. The Act is neither unconstitutionally

overbroad nor unconstitutionally vague ....... 44

A. The Act is not unconstitutionally

I Saba s bude nuceiuaueei tne occbns 45

B. The Act is not unconstitutionally

DOD 6a ct ceca ia ce ei chan Rad Cakes we 48

III. Because the Act is constitutional, the Court

need not fashion any remedy ................. 49

SES ELE BRE EP NT SS PROCES BEE dy ee MERE 50

SSE ERES REE ee apa ep ee OS of Cry ee RoE pee la

TABLE OF AUTHORITIES

Cases: Page

A Woman’s Choice—East Side Women’s Clinic v.

Newman, 305 F.3d 684 (7th Cir. 2002), cert.

denied, 537 U.S. 1192 (2003) ................. 28, 29

Ashcroft v. Free Speech Coalition, 535 U.S. 234

OE 55 eas ia kcna Penk bones i2asedsbnchasantiss 26

Ayotte v. Planned Parenthood of N. New England,

Ree Ce OEE GD oso n.hn oka tscvvndionnne 8, 12, 14, 50

Board of Educ. v. Mergens, 496 U.S. 226 (1990) ... 22, 25

Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb.

1998), aff'd, 192 F.3d 1142 (8th Cir. 1999) .......... 29

City of Houston v. Hill, 482 U.S. 451 (1987) ......... 46

Connecticut v. Menillo, 423 U.S. 9 (1975) ........... 20

Dickerson v. United States, 530 U.S. 428 (2000) ..... 27

Gooding v. Wilson, 405 U.S. 518 (1972) .........6..-. 46

Grayned v. City of Rockford, 408 U.S. 104 (1972) .... 48

Hill v. Colorado, 530 U.S. 703 (2000) ............... 48

H.L. v. Matheson, 450 U.S. 398 (1981) .............. 20

Jones v. United States, 463 U.S. 354 (1983) ....... 22, 25

Kansas v. Hendricks, 521 U.S. 346 (1997) ........... 25

Kolender v. Lawson, 461 U.S. 352 (1983) ............ 48

Lambert v. Yellowley, 272 U.S. 581 (1926) ....... 23, 25

Landmark Communications, Inc. v. Virginia, 435

if Bo fy Repro y Pre Oa ye ma, Oe Pe 25

Marshall v. United States, 414 U.S. 417 (1974) ....... 23

National Abortion Fed’n v. Ashcroft, 330 F.

Supp. 2d 436 (S.D.N.Y. 2004) ...........-..045. 39, 40

Cases—Continued: Page

National Abortion Fed’n v. Gonzales, 437 F.3d 278

nn a aeen 8, 9, 44

National Cable & Telecomm. Ass'n v. Brand X

Internet Servs., 125 8. Ct. 2688 (2005) ............. 28

New York v. Ferber, 457 U.S. 747 (1982) ............ 20

Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502

a a de a hd omnes 20

Planned Parenthood Fed’n of Am., Inc. v. Ashcroft,

320 F. Supp. 2d 957 (N.D. Cal. 2004) .............. 40

Planned Parenthood Fed’n of Am., Inc. v. Gonzales,

435 F.3d 1163 (9th Cir. 2006) ................ 8, 47, 49

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S.

EE Se Wake bawaseuwasa'e 10, 12, 15, 18, 19, 41

Roe v. Wade, 410 U.S. 113 (1973) ................ 12,14

Rostker v. Goldberg, 453 U.S. 57 (1981) .... 22, 25, 27, 31

Sable Communications, Inc. v. FCC, 492 U.S. 115

EE ab ened Mec ths one (dab bu Seb des-deanees ee 25, 26

Simopoulos v. Virginia, 462 U.S. 506 (1983) ......... 20

Stenberg v. Carhart, 530 U.S. 914 (2000) ....... passim

Tucson Woman's Clinic v. Eden, 379 F.3d 531 (9th

RTE ESR ANSE NC bare ne ere a DERE Ny RIO Ge mane 25

Turner Broad. Sys., Inc. v. FCC:

I in i a es 21, 26

EY GEPEIOED wnkscdanscnussoeceasauer passim

United States v. Morrison, 529 U.S. 598 (2000) ...... 27

United States v. O'Brien, 391 U.S. 367 (1968) ....... 25

Vil

Cases—Continued: Page

United States v. Oakland Cannabis Buyers Coop.,

SE a. GP ED nin’ kbain bb depedsddeatrekos basde 23

United States v. Salerno, 481 U.S. 739 (1987) ... 6, 16, 19

United States v. Thirty-Seven Photographs, 402

WPMD. 5. «2s .cadess shaken pubicunbionbaces 46

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

EE bo sbsduwwdewe seeded chtadassbuabbacénadesss 23

Walters v. National Ass'n of Radiation Survivors,

GE AEE 13.5 bck c06d cabboecnweadeuwass 22, 25

Constitution and statutes:

U.S. Const.:

BD Gardin vi curddes cou heccduscudédackeasebache 20

Establishment Clause ..................005: 22, 25

Amend. V (Due Process Clause) .................. 25

Partial-Birth Abortion Ban Act of 2003,

Pub. L. No. 108-105, 117 Stat. 1201 .......... passim

a ee es SE 6 2k onc cb pbswed sccep ite 4, la

§ 2(1):

De SL EE bod vg dunntebin<veacaetensmees 2, 1a

CN kod dire. cans bainnd as Kceeteeee 23

§ 2(3)-(8), 117 Stat. 1201-1202 ......... 27, 2a, 3a, 4a

Pe I CIEE Siva oWade cakcwhtahdvenee 29, 2a

§ 2(14):

DEG SI wan beh EX Gd bce Ua wad Oxamben 4, 5a

REED -n0b6 bedcatneesse ccobs cael 26

DT Bee a EEO oS adevc ccccwectvsuped 4, 6a

FE Be WN, GEE nc Gwicucpescectcsbder 4, 7a

§ 2(14)(C), 117 Stat. 1204 .................... 34, 7a

Vill

Statutes—Continued: Page

§ 2(14)(E), 117 Stat. 1204-1205 ................ 4,7a

§ 2(14)(G), 117 Stat. 1205 ................ 11, 13, 8a

SERSEGR, Ba HD adv cddvucecdvacteves 42, 9a

§ 2(14L), 117 Stat. 1206 .............. 3, 11, 42, 9a

$ 2(14)(M), 117 Stat. 1206 ............... 2, 9a, 10a

SSLRGMIND, 227 Mbat. BEG onc cc ccc ccindcccess 42, 10a

§ 2(14)(O), 117 Stat. 1206 ........... 3, 5, 30, 42, 10a

OF, BOF lee, Fe eee viciciwesteeees 10a, lla

18 U.S.C. 1531 (Supp. III 2003) ... 5, 46, 47, 48, 49

18 U.S.C. 1531(a) (Supp. I11 2003) ......... 5, 4,9

18 U.S.C. 1531(b)(1) (Supp. III

PE Udine bavhee datuwee oncth pean 5, 46, 47, 48

EEE. eavidec ih seh sbi ctu eat dcsngebkebewade 49

ee ar ce yee ee Ee 49

EE. ch aun eked ded Gobbardeeevasutasves 49

Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999) ........ 45

Miscellaneous:

RE GS SPORE wccc dec ccdvcevdcosecceces 43

149 Cong. Rec.:

p. $2523 (daily ed. Feb. 14,2003) .................. 4

p. $3607 (daily ed. Mar. 12,2003) ................. 42

p. H4940 (daily ed. June 4, 2003) .................. 42

H.R. Rep. No. 58, 108th Cong., Ist Sess. (2003) ...... 42

Partial-Birth Abortion Ban Act of 2003: Hearing

Before the Subcomm. on the Constitution of the

House Comm. on the Judiciary, 108th Cong., 1st

ED | cb be vededdpcbe dade con oubadstevieweben 4

In the Supreme Court of the Gnited States

No. 05-380

ALBERTO R. GONZALES, ATTORNEY GENERAL,

PETITIONER

LEROY CARHART, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-25a) is

reported at 413 F.3d 791. The memorandum opinion and or-

der of the district court (Pet. App. 26a-588a) are reported at

331 F. Supp. 2d 805.

JURISDICTION

The judgment of the court of appeals was entered on July

8, 2005. The petition for a writ of certiorari was filed on Sep-

tember 23, 2005, and was granted on February 21, 2006. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Partial-Birth Abortion Ban Act of 2003, Pub. L. No.

108-105, 117 Stat. 1201 (18 U.S.C. 1531 (Supp. II] 2003)), is set

forth in an appendix to this brief.

(1)

STATEMENT

This case concerns the constitutionality of the federal

Partial-Birth Abortion Ban Act of 2003. That Act prohibits a

physician from knowingly performing a partial-birth abor-

tion—a particular abortion procedure that Congress found to

be “gruesome and inhumane” and to “blur{] the line between

abortion and infanticide in the killing of a partially-born child

just inches from birth.” Act §§ 2(1), 2(14)(O), 117 Stat. 1201,

1206. Congress passed the Act after conducting nine years of

hearings and debates, after carefully considering this Court’s

precedents, and after making extensive findings based on the

substantial testimony that it had received. Because Congress

found, inter alia, that partial-birth abortion is “never medi-

cally indicated to preserve the health of the mother,”

§ 2(14)(O), 117 Stat. 1206, it did not adopt a statutory excep-

tion for cases in which the abortion is necessary to preserve

the mother’s health. The court of appeals held that, under

this Court’s decision in Stenberg v. Carhart, 530 U.S. 914

(2000), the statute was facially invalid because it lacked a

health exception, and permanently enjoined the Act’s enforce-

ment. That decision should be reversed by this Court.

1. The phrase “partial-birth abortion” refers to a particu-

larly gruesome, late-term abortion procedure known as dila-

tion and extraction (D&X) or intact dilation and evacuation

(intact D&E). In that procedure, a physician partially deliv-

ers the fetus intact and then intentionally kills it, typically by

puncturing its skull and vacuuming out its brain. See, e.9.,

Resp. C.A. App. 116-117 (describing D&X procedure). “The

vast majority of babies killed during [such] partial-birth abor-

tions are alive until the end of the procedure” and “will fully

experience the pain associated with piercing his or her skull

and sucking out his or her brain.” Act § 2(14)(M), 117 Stat.

1206; see, e.g., Pet. C.A. App. 1554-1555; Resp. C.A. App. 287.

The D&X procedure differs from a more frequently used late-

term abortion procedure known as standard dilation and evac-

uation (D&E), in which the physician typically dismembers

the fetus while most of the fetus is still inside the womb.

Stenberg, 530 U.S. at 914-915, 924-928; id. at 958-960 (Ken-

nedy, J., joined by Rehnquist, C.J., dissenting). A consensus

exists that “D&X is distinct from D&E and is a more serious

concern for medical ethics and the morality of the larger soci-

ety.” /d. at 963 (Kennedy, J., dissenting). Indeed, Congress

has found that “[the] disturbing similarity [of partial-birth

abortion] to the killing of a newborn infant promotes a com-

plete disregard for infant human life,” and that partial-birth

abortion “blurs the line between abortion and infanticide.”

$§ 2(14)(L), 2(14)(O), 117 Stat. 1206.

2. Congress, like the majority of the States, has enacted

legislation banning partial-birth abortions. It first began

considering proposals to prohibit partial-birth abortion in

1995. In the following years, Congress held numerous hear-

ings and received expert testimony that partial-birth abor-

tions were not necessary to preserve the health of the mother

in any circumstances; claims that partial-birth abortions were

safer than standard D&E abortions were either incorrect or

speculative; and, indeed, partial-birth abortions posed safety

risks that D&E abortions did not. In 1996 and 1997, Congress

passed bills that would have prohibited partial-birth abortion,

but the President vetoed them. In addition, between 1992 and

2000, some 30 States enacted prohibitions on partial-birth

abortion of their own. Pet. App. 2a; Gov't C.A. Br. 34-41.

3. In 2000, this Court invalidated a Nebraska statute that

banned “partial birth abortion” (as defined in that statute)

unless the procedure was necessary to preserve the life of the

mother. Stenberg v. Carhart, supra. The Court held that the

Nebraska statute was invalid for two independent reasons.

First, the Court held that the statute was facially invalid be-

cause it lacked an exception for cases implicating the health

of the mother. /d. at 930-938. Second, the Court held that the

statute was invalid because it defined “partial birth abortion”

in such a way as to reach not only D&X abortions, but also

standard D&E abortions, and thereby imposed an “undue

burden” on a woman’s access to an abortion. /d. at 938-946.

4. In 2003, after more hearings and debate and by wide

margins in both Houses, Congress passed, and the President

signed, the Partial-Birth Abortion Ban Act of 2003 (the Act).

The Act was predicated on numerous findings concerning the

nature of partial-birth abortions and was expressly designed

to avoid the deficiencies identified by this Court in the Ne-

braska statute at issue in Stenberg. See Act § 2, 117 Stat.

1201-1206; 149 Cong. Rec. 82523 (daily ed. Feb. 14, 2003)

(statement of Sen. Santorum); Partial-Birth Abortion Ban

Act of 2003: Hearing Before the Subcomm. on the Counstitu-

tion of the House Comm. on the Judiciary, 108th Cong., 1st

Sess. 37-38 (2003) (statement of Rep. Chabot).

First, based on “the testimony received during extensive

legislative hearings during the 104th, 105th, 107th, and 108th

Congresses,” Act § 2(14), 117 Stat. 1204, the Act contains de-

tailed factual findings with respect to the medical necessity of

partial-birth abortion. Congress found, inter alia, that

“(partial-birth abortion poses serious risks to the health of a

woman undergoing the procedure,” § 2(14)(A), 117 Stat. 1204;

that “[t}here is no credible medical evidence that partial-birth

abortions are safe or are safer than other abortion proce-

dures,” § 2(14)(B), 117 Stat. 1204; and that “[t}he physician

credited with developing the partial-birth abortion procedure

has testified that he has never encountered a situation where

a partial-birth abortion was medically necessary to achieve

the desired outcome,” § 2(14)(E), 117 Stat. 1204-1205. Based

on those and other findings, Congress ultimately found that

“partial-birth abortion is never medically indicated to pre-

serve the health of the mother.” § 2(14)(O), 117 Stat. 1206. In

the Act’s operative provisions, therefore, Congress did not

include an express statutory exception for cases in which the

abortion is necessary to preserve the mother's health. § 3,

117 Stat. 1206 (18 U.S.C. 1531(a) (Supp. IL] 2003)).

Second, the Act contains the following, more specific defi-

nition of “partial-birth abortion”:

an abortion in which the person performing the abor-

tion—(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 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 delivered living fetus; and (B)

performs the overt act, other than completion of delivery,

that kills the partially delivered living fetus.

Act § 3, 117 Stat. 1206-1207 (18 U.S.C. 15310b)1) (Supp. IIT

2003)). That definition is tailored to exclude the more com-

mon standard D&E abortion procedure that this Court found

was reached by the Nebraska statute invalidated in Stenberg.

The Act imposes criminal and civil sanctions only on a physi-

cian Who “knowingly” performs a partial-birth abortion, § 3,

117 Stat. 1206 18 U.S.C. 1581 (a) (Supp. ITT 2003)).

5. Respondents, four physicians who perform late-term

abortions, brought suit against the Attorney General, seeking

a permanent injunction against enforcement of the Act. After

a bench trial, the district court granted judgment to respon-

dents, Pet. App. 26a-588a, and enjoined the Attorney General

from enforcing the Act against respondents “in all of its appli-

cations when the fetus is not viable or when there is a doubt

about the viability of the fetus in the appropriate medical

judgment of the doctor performing the abortion.” /d. at 545a.

The district court first held that the Act was invalid be-

cause it lacked a health exception. Pet. App. 45la-507a. The

court refused to defer to Congress's findings, including its

ultimate finding that partial-birth abortion was never medi-

cally indicated to preserve the health of the mother. /d. at

461a. The court recognized that, under Turner Broadcasting

System, Ine. v. FOC, 520 U.S. 180 (1997) (Turner 11), Con-

gress's findings were entitled to “binding deference” as long

as the findings were reasonable and supported by substantial

evidence. Pet. App. 458a. However, the court stated that, in

its view, the “case-deciding question” was whether “there

|lwas| substantial evidence * * * from which a reasonable

person could conclude that there is vo substantial medical

authority supporting the proposition that banning ‘partial-

birth abortions’ could endanger women’s health.” /d. at 460a-

461la. Under that standard, the court concluded, Congress's

findings were not entitled to deference. /d. at 463a.

The district court also held that the Act was invalid be-

cause it reached certain standard D&E abortions, as well as

D&X abortions. Pet. App. 507a-521la. The court, however,

ultimately rejected respondents’ contention that the Act was

unconstitutionally vague. /d. at 522a-529a.

6. The court of appeals affirmed, holding that the Act

was facially invalid because it lacked a health exception. Pet.

App. la-25a. The court first determined that the appropriate

standard for reviewing respondents’ facial challenge was not

the “no set of circumstances” standard articulated in United

States v. Salerno, 481 U.S. 739 (1987), but rather “the test

from Stenberg.” Pet. App. 6a. The court then reasoned that

Stenberg required a health exception when “‘substantial medi-

cal authority’ supports the medical necessity of [the regu-

lated| procedure in some instances.” /d. at 10a. “In effect,”

the court continued, “we believe 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.” /bid.

The court of appeals, like the district court, refused to

defer to Congress's factual findings concerning the medical

necessity of partial-birth abortion. Pet. App. 12a-.6a. Unlike

the district court, however, the court of appeals ultimately

coneluded that “the government’s argument regarding

Turner deference is irrelevant to the case at hand.” /d. at

15a. The court explained that, while “|w)hether a partial-

birth ahortion is medically necessary in a given instance

would be a question of fact,” “whether the record in a particu-

lar lawsuit reflects the existence of ‘substantial medical au-

thority’ supporting the medical necessity of such procedures

is a question that is different in kind.” /d. at 12a-13a. The

court reasoned that “Stewberg created a standard in which the

ultimate factual conclusion is irrelevant,” id. at 13a, and con-

cluded that, “|ujnder the ‘substantial medical authority’ stan-

dard, our review of the record is effectively limited to deter-

mining whether substantial evidence exists to support the

medical necessity of partial-birth abortions without regard to

the factual conclusions drawn from the record by the lower

court (or, in this ease, Congress).” /bid.

Che court of appeals then asserted that the medical neces-

sity ofa particular abortion procedure was a question of “leg-

islative” fact. Pet. App. 16a-20a. The court observed that, in

Stenberg, this Court had determined that “substantial medical

authority” supported the need for a health exception in a stat-

ute regulating partial-birth abortion. /d. at lSa. The court

asserted that “|njeither we, nor Congress, are free to disagree

with the Supreme Court's determination because the Court's

conclusions are final on matters of constitutional law.” /bid.

Although the court conceded that Stewberg did not stand for

the proposition that “legislatures are forever constitutionally

barred from enacting partial-birth abortion bans,” it asserted

that legislatures could enact such bans only if, “at some point

(either through an advance in knowledge or the development

of new techniques, for example), the procedures prohibited hy

the Act will be rendered obsolete.” /d. at 19a-20a. While the

court recognized that “[t|here is some evidence in the present

record indicating each of the advantages discussed in

Stenberg are incorrect and the banned procedures are never

medically necessary,” it held that the government had failed

to “demonstrate that relevant evidentiary circumstances

(such as the presence of a newfound medical consensus or

medical studies) have in fact changed over time.” /d. at 22a.

7. Since the court of appeals’ decision, two other courts

of appeals have passed on the constitutionality of the Act.

a. The Ninth Circuit held that the Act was facially invalid

because it lacked a health exception, covered certain D&E

abortions, and was unconstitutionally vague. See Planned

Parenthood Fed'’n of Am., Ine. v. Gonzales, 435 F.3d 1163,

1172-1184 (2006), pet. for cert. filed (No, 05-1382). Based on

that holding, the Ninth Circuit concluded that it could not

craft a narrower injunction under the approach outlined in

Ayotte v. Planned Parenthood of Northern New England, 126

S. Ct. 961 (2006), and therefore permanently enjoined en-

forcement of the Act in its entirety. 435 F.3d at 1184-1191.

b. A divided Second Circuit panel held that the Act was

facially invalid because it lacked a health exception. National

Abortion Fed’n v. Gouzales, 437 F.3d 278 (2006). Chief Judge

Walker concurred. He stated that it was his “duty to follow

[this Court's] precedent in Stenberg,” but that in his view

Stenberg was “flawed” in “at least three respects.” /d. at 290-

201. First, Stewberg “equates the denial of a potential health

benefit (in the eves of some doctors) with the imposition of a

health risk and, in the process, promotes marginal safety

above all other values.” /d. at 291. Second, Stenberg “en-

dorses a rule that permits the lower courts to hold a statute

facially invalid upon a speculative showing of harm.” /bid.

Third, Stenberg “establishes an evidentiary standard that all

but removes the legislature from the field of abortion policy.”

Ibid. Judge Straub dissented. He explained that Stenberg is

distinguishable in important respects and concluded that the

“fundamental error” with the majority’s approach was “to

collapse the inquiry into whether a ‘division of medical opin-

ion’ exists and thereby discard any role for congressional find-

ings about the actual necessity of the procedure.” /d. at 297.

SUMMARY OF ARGUMENT

The court of appeals erred in invalidating the Partial-

Birth Abortion Ban Act of 2003. Congress's decision to ban

the particularly gruesome partial-birch abortion procedure

advances Vital state interests and does not impose an “undue

burden” on a woman’s access to an abortion. Indeed, far from

placing a substantial obstacle in the path of any woman seek-

ing an abortion, the Act simply eliminates a disfavored and

rarely used late-term abortion procedure that, as Congress

found, is medically unnecessary. No precedent of this Court

requires the judicial invalidation of that legislative measure.

1. The absence of a health exception to the Act’s ban on

ua particular procedure does not impose an undue burden.

Under this Court’s precedents, the relevant inquiry in this

context is whether a statute regulating an abortion procedure

would ereate significant health risks, such that it would place

a substantial obstacle in the path of a woman seeking an abor-

tion, in a large fraction of its applications. The court of ap-

peals erred by reading Stenberg v. Carhart, 530 U.S. 914

(2000), as holding that the relevant inquiry was instead

whether there is merely a division of medical opinion on

whether the statute would create substantial health risks.

Such a reading would delegate the authority over constitu-

tional decisionmaking to a minority of medical professionals

and put Stenberg into conflict with this Court's earlier deci-

sions, including Planned Parenthood of Southeastern Penu-

sylvania v. Casey, 505 U.S. 833 (1992), which require a plain-

tiff to do more than merely demonstrate the existence of con-

flicting opinions about health risks in order to negate the gov-

ernment’s compelling interests in proscribing or limiting an

abortion procedure. There is no reason for this Court to con-

strue Stewberg in a manner that would svb silentio override

its prior precedents. ;

Viewed in the proper light, the Act readily passes muster.

In the Act, Congress made numerous factual findings, culmi-.

nating in the ultimate finding that partial-birth abortion is

vever medically indicated to preserve the health of the

mother. Those findings are supported by substantial evidence

and entitled to deference under the long-standing principle

that Congress is better equipped than courts to make factual

findings that inform the constitutionality of federal statutes,

including findings about complex medical judgments. There

is no justification to disregard that principle here, where Con-

gress has made express statutory findings on an issue of med-

ical judgment based on testimony and other evidence received

in extensive legislative hearings. This Court's decision in

Stenberg focused on the trial record and the district court's

factual findings concerning the medical necessity of partial-

birth abortion. It did not purport to foreclose Congress from

subsequently making findings on the same issue, based on a

more recent, and more complete, evidentiary record.

Even if the Court were to decline to defer to Congress's

findings concerning the absence of any significant health

risks, the evidence presented by respondents at trial at most

suggests that partial-birth abortion may be marginally safer

than more common abortion procedures in some narrow cir-

cumstances. Given the critical state interests in proscribing

that procedure, that cannot be sufficient to demonstrate that

a statute prohibiting partial-birth abortion imposes an undue

burden on a woman’s access to an abortion. The Act directly

advances not only the government's compelling interest in

protecting potential life, but also its specific, and equally com-

pelling, interest in prohibiting a particular type of abortion

procedure that bears a “disturbing similarity to the killing of

a newborn infant.” Act § 2(14)(L), 117 Stat. 1206. Indeed, one

of the express purposes of the Act is to “draw a bright line

that clearly distinguishes abortion and infanticide.” Act

§ 2(14)(G), 117 Stat. 1205. In light of the relative strength of

the government’s interests, the Act is constitutional under the

undue-burden standard. Any different understanding would

be at odds with one of the central objectives of the joint opin-

ion in Casey: 7.e., to accommodate more fully the govern-

ment’s paramount interest in protecting potential human life.

This case is distinguishable from Stenberg in several im-

portant respects, and, as explained, under a proper reading of

Stenberg, respondents’ facial challenge to the constitutionality

of the Act fails. To the extent that the Court concludes that

Stenberg compels the conclusion that the Act is facially in-

valid, however, Stenberg should be overruled.

Il. The Act readily passes muster under overbreadth and

vagueness principles as well. Unlike the statute at issue in

Stenberg, the Act does not reach standard D&E abortions, but

instead is limited to abortions in which the physician delivers

the fetus beyond a specified anatomical “landmark” and then

performs a discrete “overt act” that kills the living fetus (and

delivers the fetus with the purpose of performing that act).

The Act therefore does not cover any abortion that does not

qualify as a “partial-birth abortion” under any reasonable

understanding of that concept. Nor is the Act void for vague-

ness. It provides ample notice of the conduct that it prohibits

and contains no ambiguous terms or phrases. Moreover, be-

cause this case, unlike Stevberg, involves a federal statute,

there is no obstacle to this Court’s construing the statute to

avoid any perceived overbreadth or vagueness difficulties.

Ill. Because the Act suffers from no constitutional de-

fect, the Court need not fashion any remedy. If the Court

nevertheless concludes that the Act is unconstitutional in any

respect, it may be possible to craft narrower injunctive relief

under A yotte v. Planned Parenthood of Northern New Eng-

land, 1268. Ct. 961 (2006). Because that inquiry necessarily

entails a statute-specifie consideration of legislative intent, in

light of an identified constitutional difficulty with the statute,

it would be appropriate for the Court to leave that issue for

remand, as it did in Ayotte. In any event, because the statute

is in fact facially constitutional, no remedial question arises in

this case, and the judgment below should be reversed.

ARGUMENT

THE PARTIAL-BIRTH ABORTION BAN ACT OF 2003 IS CON.

STITUTIONAL ON ITS FACE

In Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 US. 833 (1992), the controlling joint opinion sur-

veyed the Court’s abortion jurisprudence since Roe v. Wade,

410 U.S. 113 (1973), and concluded that the portion of Roe

recognizing “the State's ‘important and legitimate interest in

potential life’ * * * has been given too little acknowledg-

ment and implementation by the Court in its subsequent

cases.” Casey, 505 U.S. at 871 (quoting Roe, 410 U.S. at 427).

Thus, while the joint opinion reaffirmed “the central holding

of Roe.” id. at S79, it abandoned Roe’s strict-serutiny ap-

proach in favor of an “undue burden” standard that would

provide a more “appropriate means of reconciling the State's

interest with the woman’s constitutionally protected liberty.”

/d. at 876. Under that framework, an abortion regulation is

constitutional unless it places a “substantial obstacle” in the

way of a woman’s access to an abortion. /d. at 877.

Since Casey, Congress and some 30 States have passed

laws banning partial-birth abortion—a gruesome and rarely

used procedure that, as Congress found, legislatures have a

“compelling interest in prohibiting,” not only to promote the

government's paramount interest in protecting human life,

but also to “promot{e|] maternal health” and “draw a bright

line that clearly distinguishes abortion and infanticide.” Act

§ 2(114G), 117 Stat. 1205. In Stenberg v. Carhart, 530 U.S.

914 (2000), this Court held that a State’s partial-birth abortion

statute was unconstitutional under Casey's undue-burden

standard. The question in Stenberg divided even the Justices

who jointly wrote the controlling opinion in Casey, with Jus-

tice Kennedy concluding that the majority was undervaluing

“critical state interests” and thus ignoring the central lesson

of Casey. Stenberg, 530 U.S. at 957 (dissenting opinion).

This case differs from Stenberg in critical respects. For

example, this case involves an Act of Congress that is accom-

panied by extensive findings; the Act contains a more tar-

geted definition of partial-birth abortion and, as a federal

statute, can be construed by the Court to avoid difficulties;

and this case reaches the Court on a different, and more ex-

tensive, trial record. Recognizing those differences, giving

proper weight to Congress's findings, and acknowledging the

government's compelling interests, should yield only one

conclusion—that the Act is constitutional on its face.

Il. THE ABSENCE OF A HEALTH EXCEPTION DOES NOT

RENDER THE ACT FACTIALLY INVALID

The court of appeals held that the Partial-Birth Abortion

Ban Act of 2003 was facially invalid because it lacked a health

exception. That holding was based on the fallacious premise

that a statute regulating an abortion procedure must contain

a health exception as long as there is a division of medical

opimion on whether the statute would create substantial

health risks. This Court’s decisions, however, hold that such

a statute is facially invalid only where it would create signifi-

cant health risks, such that it would create an undue burden

by imposing a substantial obstacle in the path of a woman

seeking an abortion, in a large fraction of its applications.

Viewed in the proper light, the Act readily survives scrutiny

because the record—including Congress's considered find-

ings, which are entitled to deference—overwhelmingly dem-

onstrates that the partial-birth abortion procedure at issue is

never medically indicated to preserve the health of the

mother. Moreover, even if partial-birth abortion had mar-

ginal health benefits in some cases, that still would not be

sufficient to overcome Congress's compelling interests in pro-

tecting potential human life, drawing a bright line between

abortion and infanticide, and prohibiting a rarely used, late-

term abortion procedure that is inhumane.

A. AStatute That Regulates Abortion, But Lacks A Health

Exception, Is Not Facially Invalid Unless It Would Cre-

ate Significant Health Risks, And Thereby Impose An

Undue Burden, In A Large Fraction Of Its Applications

1. This Court has held that “a State may not restrict ac-

cess to abortions that are necessary, in appropriate medical

judgment, for preservation of the life or health of the

mother.” Ayotte v. Planned Parenthood of N. New Englaud,

126 S. Ct. 961, 966-967 (2006) (internal quotation marks omit-

ted). That proposition originates from the Court's decision in

Roe v. Wade, 410 U.S. 113 (1973). After determining that a

State's interest in potential life became compelling at the

point of viability, ¢¢@. at 164, the Court concluded that, “subse-

quent to viability, the State * * * may, if it chooses, regu-

late, and even proscribe, abortion except where it is neces-

sary, in appropriate medical judgment, for the preservation

of the life or health of the mother,” id. at 164-165.

In Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992), the joint opinion concluded that

regulations that imposed an “undue burden” on a woman's

access to an abortion were unconstitutional, explaining that

“lajn undue burden exists, and therefore a provision of law is

invalid, if its purpose or effect is to place a substantial obsta-

cle in the path of a woman seeking an abortion before the

fetus attains viability.” /d. at 878. Applying that standard,

the Court sustained all of the regulations at issue in Casey

(except for a spousal-notification provision), including a blan-

ket statutory exception for cases involving medical emergen-

cies. /d. at 879-880. As a factual matter, the Court rejected

the contention that the statutory exception for medical emer-

gencies “foreclose{d] the possibility of an immediate abortion

despite some significant health risks” and was thus too nar-

row. /d. at 880. In so doing, the Court stated that “the essen-

tial holding of Roe forbids a State to interfere with a woman’s

choice to undergo an abortion procedure if continuing her

pregnancy would constitute a threat to her health.” /bid.

2. a. In Stenberg, the Court “applie|d]” the “legal princi-

ples” from Roe and Casey “to the circumstances” of a specific

Nebraska statute based on a particular factual record. 530

U.S. at 921; see id. at 929-930, 938. The Court held that a

statute prohibiting a particular abortion procedure without an

express health exception would be unconstitutional if the stat-

ute would “create significant health risks”: /.¢., health risks

significant enough to constitute an undue burden. /d. at 932;

see jd. at 931 (noting that “a State cannot subject women’s

health to significant risks”); 7d. at 93S (concluding that the

statute at issue “creates a significant health risk”). The Court

appeared to recognize that, unlike a statute entirely prohibit-

ing abortion (which would create significant health risks

where “the pregnancy /tse/f creates a threat to health”), a

statute prohibiting a particular abortion procedure would

create significant health risks by prohibiting a procedure that

is substantially safer than other procedures, either more gen-

erally or in specifie circumstances (e.g., where the mother has

a particular health-threatening condition). /d. at 931.'

Applying that standard, the Court, pointing to the district

court's findings and evidence, held that the plaintiff had dem-

onstrated that the statute at issue would create significant

health risks. Stenberg, 530 U.S. at 932. The Court noted that

the district court had found that “the D&X method was signif-

icantly safer in certain circumstances.” /d. at 934; see id. at

936 (noting the “District Court finding that D&X significantly

obviates health risks in certain circumstances”). The Court

also noted that the State had “failfed] to demonstrate that

banning D&X without a health exception may not create sig-

nificant health risks for women.” /d. at 932; see id. at 937-

938. Having concluded, on the discrete record before it, that

“a statute that altogether forbids D&X creates a significant

health risk,” the Court held the statute unconstitutional be-

cause it lacked a health exception. /d. at 938.

b. To be sure, some language in the Court’s opinion in

Stenberg could be read, in isolation, to suggest that a statute

prohibiting a particular abortion procedure would be uncon-

stitutional as long as there is conflicting evidence as to

whether the statute at issue would create significant health

A statute that prohibits a procedure that is safer only in specific cir-

cumstances presumably could be enjoined only as to those specific applica-

tions—a result reinforced by this Court's recent decision in Ayofte.

In Stenberg, the Court did not expressly state which party—the plaintiff

or the State—bore the ultimate burden of persuasion on the question whether

the statute at issue would create significant health msks. In 2 facial challenge.

however, the plaintiff ordinarily bears the burden of proof. See, ¢.g., (veted

States v. Salerno, A8i US. 739, 745 (987). That placement of the burden is

particularly appropriate where the gravamen of the challenge is that Congress

itself has misapprehended the relevant risks.

risks. See, e.g., 580 U.S. at 988 (indicating that a health ex-

ception was necessary “where substantial medical authority

supports the proposition that banning a particular abor-

tion procedure could endanger women’s hea'th”) (emphasis

added); id. at 936-937 (noting “a division of opinion among

some medical experts over whether D&X is generally safer”

and suggesting that “the division of medical opinion about the

matter at most means uncertainty, a factor that signals the

presence of risk, not its absence”).

In Stenberg, however, the Court did not hold that the ap-

propriate constitutional test was whether the plaintiff had

established a division of medical opinion concerning the health

risks of a ban on partial-birth abortion. As the principal dis-

senting opinions in Stenberg noted, such a test would effec-

tively render it impossible to sustain a statute prohibiting a

particular method of abortion against a facial challenge, inso-

far as “there will always be some support for a procedure and

there will always be some doctors who conclude that the pro-

cedure is preferable.” 530 U.S. at 1012 (opinion of Thomas,

J.); see id. at 969 (opinion of Kennedy, J.) (noting that “[tjhe

standard of medical practice cannot depend on the individual

views of |the plaintiff] and his supporters”). The Court re-

sponded that it was not suggesting that “a State is prohibited

from proscribing an abortion procedure whenever a particular

physician deems the procedure preferable.” /d. at 938.

Stenberg therefore did not establish a rule that a plaintiff

need only identify a division of opinion among medical experts

on the existence of significant health risks.

A contrary reading of Stewberg, moreover, would be incon-

sistent with this Court's previous abortion decisions. In

Causey, for example, the Court held only that it would be un-

constitutional for a State to prohibit or restrict abortion

where the regulation at issue would “interfere with a woman's

choice to undergo an abortion procedure if continuing her

pregnancy would constitute a threat to her health,” 505 U.S.

ut S80, without any suggestion that it would be sufficient for

the plaintiff to demonstrate merely that there were conflict-

ing medical opinions on whe.er “continuing her pregnancy

would constitute a threat to her health.” Because the Court

emphasized in Stewberg that it was merely applying, and not

modifving, Casey, see 530 U.S. at 988, there is no reason to

attribute such a substantial doctrinal shift to Stenberg.

In addition, a contrary reading of Stenberg would be at

odds with traditional standards of proof. Whereas a plaintiff

who identified a dispute on a constitutionally relevant ques-

tion of fact would ordinarily be entitled only to survive a mo-

tion for summary judgment, a plaintiff who demonstrated the

existence of a dispute on the medical necessity for a particular

abortion procedure would be entitled to prevail ou the merits.

If Stenberg meant to introduce such an innovation in civil pro-

cedure in the abortion context, it presumably would have

made that intent far more manifest.

In short, the proper understanding of Stenberg, and the

one that best squares with this Court's precedents, is that a

plaintiff challenging an abortion regulation that lacks a health

exception must actually prove that the regulation at issue

would create significant health risks for women, such that the

absence of a health exception would impose an undue burden.

3. Like this case, Stenberg involved a facial challenge to

an abortion regulation that lacked a health exception. In

Stenberg, however, the Court did not expressly address the

question whether a plaintiff bringing such a facial challenge

must demonstrate that the statute is unconstitutional—v.c.,

that the statute would create significant health risks—in all,

or merely most or many, of its applications. For the reasons

discussed at greater length in the government's brief (at 9-12)

in Ayotte (No. 04-1144), the better view is that a plaintiff

bringing a facial challenge must show that the statute is in-

19)

valid in all its applications. See, e.g., United States v.

Salerno, 481 U.S. 739 (1987). At most, however, Stenberg

stands only for the proposition that a plaintiff bringing a fa-

-cial challenge to an abortion regulation that lacks a health

exception must demonstrate that the statute would create

significant health risks for at least a “large fraction” of

women covered by the statute.’ And because the federal Act

is facially constitutional under the “large fraction” test, there

is no occasion in this case for the Court to choose between

that test and Salerno’s “no set of circumstances” test.

Respondents suggest (Br. in Opp. 27-28) that Stenberg

adopted a more permissive standard for facial challenges than

either the “no set of circumstances” standard from Salerno or

the “large fraction” standard from Casey, and instead held

that a plaintiff bringing a facial challenge to an abortion regu-

lation that lacks a health exception need only demonstrate

that the statute would create significant health risks in

a small percentage of its applications. That reading of

Stenberg, however, not only would belie the Court's assertion

that the requirement of a health exception constituted “simply

a straightforward application of |Casey’s| holding,” 530 U.S.

at 938, but would entirely subvert the Salerno standard by

allowing a plaintiff to obtain facial invalidation of a statute

simply by showing that the statute had a few unconstitutional

applications. Such a virtual presumption of facial invalidity

would be difficult to reconcile with this Court’s other abortion

In Stenberg, the Court repeatedly noted that the eritical question was

whether the statute would pose “sig ificant health risks for women.” 530 U.S.

at $32 (emphasis added); see id. at 931, 938. While that formulatien appeared

to state the relevant constitutional test, it can be read to suggest that the

plaintiff must show that the statute would pose a substantial health risk to Gand

therefore impose an undue burden on) at least a “si

significant” number of women

covered by the statute—a rule that would be consistent with the “large

fraction” formulation from the joint opinion in Casey. 505 US. at 845, 894-805,

decisions, which have upheld applications of abortion regula-

tions while acknowledging the potential for other, unconstitu-

tional applications, see, e.g., Ohio v. Akron Ctr. for Reprod.

Health, 497 U.S. 502, 514 (1990); Simopoulos v. Virginia, 462

U.S. 506, 510 (1983); HLL. v. Matheson, 450 U.S. 398, 405-407

(1981); Connecticut v. Menillo, 423 U.S. 9, 11 (1975), and with

this Court's decisions in other contexts, even the unique con-

text of the First Amendment, see, ¢e.g., New York v. Ferber,

458 U.S. 747, 772 (1982). Indeed, if the absence of a health

exception suffices to invalidate a statute on its face, then this

Court’s decision in Ayotte to vacate, rather than affirm, the

injunction of the New Hampshire parental-notification statute

at issue in its entirety is difficult to understand. Instead,

Stenberg, as properly understood, teaches that a statute that

regulates a particular abortion procedure, but lacks a health

exception, is not facially invalid unless, at a minimum, the

statute would create significant health risks in a large fraction

of its applications.

B. When Analyzed Under The Proper Standard, The Record

Overwhelmingly Supports Congress's Judgment That No

Health Exception Was Required

In enacting the Partial-Birth Abortion Ban Act of 2003,

Congress made numerous findings, culminating in the ulti-

mate finding that partial-birth abortion is never medically

indicated to preserve the health of the mother. Consistent

with the constitutional rule established by this Court’s prece-

dents, Congress therefore was entitled to conclude not only

that a health exception was not constitutionally required, but

that a health exception would effectively undermine the criti-

cal state interests that Congress sought to advance. The

court of appeals, however, refused to defer to Congress's find-

ings on the assumption that Stenberg effectively foreclosed

Congress from making them. That was error.

1. Congressional Findings On Constitutionally Rele-

vant Factual Issues Are Entitled To Great Deference

This Court has long held that courts should afford a high

degree of deference to congressional factual findings that

inform the constitutionality of federal statutes. In Turner

Broadcasting System, Ine. v. FCC, 520 U.S. 180 (1997)

(Turner I1), the Court set out the principles governing judi-

cial review of congressional findings. The Court held that,

“liJn reviewing the constitutionality of a statute, ‘courts must

accord substantial deference to the predictive judgments of

Congress.’” /d. at 195 (quoting Turner Broadcasting System,

Ine. v. FCC, 512 U.S. 622, 665 (1994) (Turner 1) (plurality

opinion)). The Court further noted that “{the] sole obligation

[of a court] is ‘to assure that, in formulating its judgments,

Congress has drawn reasonable inferences based on substan-

tial evidence.” /bid. (quoting Turner /, 512 U.S. at 666 (plu-

rality opinion)). The Court stressed that, where congressio-

nel factfinding is at issue, “substantiality is to be measured

* * * by a standard more deferential” than even the stan-

dard applicable to agency factfinding. /bid. That deference

is appropriate, the Court explained, both because “|Congress|

is far better equipped than the judiciary to amass and evalu-

ate * * * data bearing upon legislative questions,” ?bid.

(citations and internal quotation marks omitted), and because

“t]he Constitution gives to Congress the role of weighing

conflicting evidence in the legislative process,” id. at 199.

This Court has deferred to congressional factual findings

in a wide variety of contexts and with regard to a wide variety

of constitutional claims. In Turver //, for example, in reject-

ing a Free Speech Clause challenge to statutory provisions

requiring cable-television systems to carry local television

stations, the Court deferred to express statutory findings,

including Congress's ultimate finding that the provisions were

necessary to preserve those stations. The Court reasoned

that, “le]ven in the realm of First Amendment questions,”

deference was due to “|Congress’s| findings as to the harm to

be avoided and to the remedial measures adopted for that

end.” 520 U.S. at 196."

Congressional findings on medical or scientific issues are

not subject to a different rule. In Jones v. United States, 463

U.S. 354 (1983), for example, in rejecting a due process chal-

lenge to a statute providing for the indefinite civil commit-

ment of certain individuals acquitted by reason of insanity,

the Court deferred to a congressional finding that those indi-

viduals were likely to be dangerous. The Court rejected the

plaintiffs contention that there was conflicting psychiatric

research on the issue, concluding that “|t|he lesson we have

drawn is not that government may not act in the face of this

uncertainty, but rather that courts should pay particular def-

erence to reasonable legislative judgments.” /d. at 365 n.13.

See, ¢.g., Board of Educ. v. Mergens, 496 US, 226, 251 (1990) (rejecting

Establishment Clause challenge to Equal Access Act in part based on a

congressional finding that high-school students were unlikely to confuse an

equal-access policy with state sponsorship of religion; “| gliven the deference

due the duly enacted and carefully considered decision of a coequal and repre-

sentative branch of our Government, we do not lightly second-guess such

legislative judgments, particularly where the judgments are based in part on

empirical determinations”) (citations and internal quotation marks omitted);

Walters vy. National Ass'n of Radiation Survivors, 473 U.S. 305, 331 1.12 1985)

(rejecting due process challenge to statutory limit on attorneys’ fees in certain

administrative proceedings in part based on congressional findings that

attorneys were generally unnecessary in such proceedings; “|w|hen Congress

makes findings on essentially factual issues such as these, those findings are of

course entitled to a great deal of deference, inasmuch as Congress is an institu-

tion better equipped to amass and evaluate the vast amounts of data bearing

on such an issue”); Rostker v. Goldberg, 453 U.S. 57 981) (rejecting equal

protection challenge to male-only draft registration in part based on a

congressional finding that, because women then served only in non-combat

roles, it would be unnecessary to draft women to fill those roles).

And in Lambert v. Yellowley, 272 U.S. 581 (1926), in rejecting

a contention that physicians were constitutionally entitled to

prescribe alcohol for patients for whom they believed it to be

medically necessary, the Court deferred to an “implicit con-

gressional finding” that alcohol had no medicinal uses. /d. at

595. The Court recognized that “practicing physicians

differ|ed| about the value” of using alcohol for medicinal pur-

poses, /d. at 590, but reasoned that Congress could permissi-

bly conclude that it had no medicinal uses in the absence of

any consensus to the contrary, id. at 594-595.’

Congress’s findings in enacting the Partial-Birth Abortion

Ban Act of 2003—including its ultimate finding that partial-

birth abortion “is never medically necessary,” Act § 2(1), 117

Stat. 1203—are based on an extensive legislative record.

They concern complex medical matters as to which courts lack

any particular institutional expertise. And they are entitled

to the same degree of respect as other congressional findings

to which this Court has traditionally deferred.

See, ¢.g., Useryv. Turner Elkhorn Mining Co., 428 U.S. 1, 38-34 (1976)

(rejecting due process challenge to a statute prohibiting reliance on negative

X-rays in denial of disability claims, in deference to a congressional determina-

tion that such X-ray evidence was unreliable; “the reliability of negative X-ray

evidence was debated forcefully on both sides before the Congress” and “it is

primarily for Congress to amass the stuff of actual experience and cull conelu-

sions from it”); Marshall y. United States, 414 US. 417, 427 (1974) (rejecting

equal protection challenge to statute mandating incarceration rather than

treatment for drug addicts with two prior felony convictions; “| when Congress

undertakes to act in areas fraught with medical and scientific uncertainties,

arguendo, that judges with more direct exposure to the problem might make

wiser choices”); ef. United States v. Oakland Cannabis Buyers’ Coop. 582 U.S.

483, 493 (2001) (noting Court's inability to “override a legislative determination

manifest in a statute” about the medical value of marijuana).

2. Congress's Findings On The Medical Necessity Of

Partial-Birth Abortion Are Entitled To Deference

a. Respondents contend that, although this Court has

generally deferred to congressional findings of fact that bear

on the constitutionality of federal statutes, that principle is

inapplicable here. That contention should be rejected.

i. Respondents assert (Br. in Opp. 18-20) that congres-

sional findings are not entitled to deference unless the find-

ings at issue are “predictive.” As a preliminary matter, and

contrary to respondents’ suggestion (?d. at 18), Congress was

in fact “making predictions about the future impact of legisla-

tion” in this case: namely, predictions about the likely health

effects of prohibiting a particular type of abortion procedure.

More fundamentally, however, where Congress makes a pre-

dictive judgment about the effects of proposed legislation, it

inevitably relies on data concerning the status quo in making

that judgment. Thus, in Turner J], Congress's finding that

the “must-carry” provisions at issue would be necessary to

preserve local television stations was predicated on its assess-

ment of then-existing conditions in the local broadcasting

industry. See 520 U.S. at 195-196. So too in this case, Con-

gress’s finding that the abortion procedure at issue was never

(and thus would never be) necessary to preserve the mother’s

health was concededly based on evidence concerning the

“current state of medicine” (Br. in Opp. 18-19): namely, evi-

dence concerning the current use of the procedure.

Nor would it be logical to defer to “predictive” congressio-

nal findings only when they are based wholly on conjecture,

and not when they are grounded in empirical data. To the

contrary, a fundamental rationale for deference to congressio-

nal findings is that Congress “is far better equipped than the

judiciary to amass and evaluate * * * data bearing upon

legislative questions.” Turner 1], 520 U.S. at 195 (emphasis

added) (internal quotation marks omitted). It is thus unsur-

prising that this Court has deferred to Congress's predictive

judgments on medical and scientific issues, even (or espe-

cially) where those judgments were based on the “current

state” of the evidence. See, e.g., Jones, 463 U.S. at 363-366 &

n.13; Lambert, 272 U.S. at 588-597; ef. Kansas v. Hendricks,

521 U.S. 346, 360 n.3 (1997) (noting that “it is precisely where

* * * disagreement |among medical experts] exists that leg-

islatures have been afforded the widest latitude in drafting

* * * statutes”).

ii. Respondents alternatively suggest (Br. in Opp. 20-24)

that congressional findings are not entitled to deference in

cases “involving a burden on a constitutional right, infringe-

ment of which is subject to heightened serutiny.” That con-

tention, however, is refuted by Turner 1], which involved a

content-neutral regulation subject to intermediate scrutiny

under United States v. O’Brien, 391 U.S. 367 (1968). See

Turner IT, 520 U.S. at 185, 189-190. As courts have noted, the

undue-burden standard applicable to abortion regulations

under the joint opinion in Casey closely resembles an

intermediate-scrutiny standard. See, e.g., Tucson Woman's

Clinic v. Eden, 379 F.3d 531, 549 (9th Cir. 2004). Moreover,

this Court has deferred to congressional findings in a number

of other cases involving fundamental constitutional rights and

different levels of scrutiny.” There is therefore no principled

basis for holding that the degree of deference owed to con-

gressional findings depends on the level of scrutiny applicable

to the right at issue.’

See, c.g.. Mergens, 496 US. at 250-251 (Establishment Clause); Walters,

473 U.S. at $20-354 (Due Process Clause); Jowes, 465 US. at 361 (Due Process

Clause); Rostker, 453 US. at 69 (equal protection component of Due Process

Clause); Lambert, 272 U.S. at 588 (Due Process Clause).

Respondents rely (Br. in Opp. 20-21) on this Court's decisions in Land-

mark Communications, Liev. Virginia, ABS US. 829 (1978); Sable Commune

iii. Respondents contend (Br. in Opp. 21) that, in several

of the cases cited above involving issues of medical or scien-

tific judgment, Congress did not defer to “legislative findings”

at all. It is true that, in a number of those cases, Congress did

not make express findings in the tert of the statute, but in-

stead made implicit findings about a disputed question of fact

that was relevant to the constitutional claim at issue. Other

cases, including 7'rner //, involved express statutory find-

ings. See Turner /, 512 U.S. at 632-634 (plurality opinion)

(listing findings). In any event, Court's willingness to defer

even to implied findings by Congress only strengthens the

case for deference where, as here, Congress deliberately and

unambiguously made explicit findings based on testimony and

other evidence received in extensive legislative hearings. See

Act § 2(14), 117 Stat. 1204-1206.

b. The court of appeals took a different approach. It rea-

soned that Congress was not “free to disagree with the Su-

preme Court's determination [concerning the medical neces-

sity of partial-birth abortion] because the Court’s conclusions

are final on matters of constitutional law.” Pet. App. 18a.

That reasoning is deeply flawed. In passing the Act, Con-

gress did not attempt to supersede the constitutional rude

applied in Stenberg—i.e., the rule that a statute prohibiting a

particular abortion procedure would be unconstitutional

where the statute would create significant health risks. 530

cations of California, Luc. v. FOC, A92 US. 115 1989), and Asherofl v. Free

Speech Coalition, 585 US. 234 (2002). None of those cases, however, stands for

the proposition that congressional findings are not entitled to deference where

heightened scrutiny is invelved. Landmark did not even involve a federal

statute; Nadble rejected a request for deference on the ground that “the con-

gressional record contain|ed| no legislative findings” germane to the constitu-

tional question presented, 492 U.S. at 12; and Free Speech Coalition likewise

rejected a request for deference on the ground that the congressional finding

at issue Was legally irrelevant, 535 U.S. at 255.

U.S. at 932. To the contrary, Congress expressly took into

account the constitutional rule of Stenberg and proceeded to

make findings on a factual issue (indeed, the central factual

issue) relevant to the application of that constitutional

rule—viz., whether partial-birth abortion was in fact medi-

cally necessary. See Act § 2(3)-(8), 117 Stat. 1201-1202. In

Stenberg, the Court expressly characterized that issue as a

“factual question” (and ultimately concluded that the plaintiff

had demonstrated that the statute at issue would in fact cre-

ate significant health risks). /bid. This case is therefore cru-

cially different from cases in which Congress either sought to

supersede a constitutional ruling of this Court, see Dickerson

v. United States, 530 U.S. 428 (2000), or made findings that

were simply insufficient to sustain a statute’s constitutional-

ity, see United States v. Morrison, 529 U.S. 598 (2000).”

The court of appeals also suggested that, even if the medi-

cal necessity of partial-birth abortion were a question of fact,

it was a question of “legislative” fact, and Stenberg thus fore-

closed Congress from making findings on that question. Pet.

App. l6a-20a. As a preliminary matter, in Stenberg, no fed-

eral statute was at issue, and there were no congressional

findings on the necessity for a health exception. Accordingly,

nothing in Stenberg suggests that the Court intended to bar

Congress from deliberating on the issue and making its own

findings, and thus to carve out an “abortion-only” exception

to the customary rule that congressional findings concerning

the constitutionality of federal statutes are entitled to defer-

It was appropriate—indeed, desirable—for Congress carefully to

consider this Court's precedents, including Stewberg, in determining whether

the record before it would support the enactment of legislation that would

survive constitutional challenge. See Rostker, 453 U.S. at 64 (noting that “|t}he

customary deference accorded to judgments of Congress is certainly appropri-

ate when, as here, Congress specifically considered the question of the Act's

constitutionality”).

ence. Indeed, the lower court’s conclusion that Stenberg

estopped it from giving deference to Congress’s findings is

analogous to the error this Court corrected in National Cable

& Telecommunications Ass'n v. Brand X Internet Services,

125 S. Ct. 2688 (2005). Just as a prior judicial determination

about the meaning of an ambiguous statute does not deprive

a later administrative construction of the deference that it

would otherwise be due, see id. at 2700-2702, an earlier judi-

cial finding of fact likewise does not deprive a later congres-

sional finding of deference. Indeed, the error here is much

more obvious. In Brand X, the statute to be construed was

the same, while here, Congress passed the statute at issue

based on a different, and more extensive, record.

Even assuming that the medical necessity of partial-birth

abortion is accurately labeled a “legislative” fact, moreover,

it does not follow that this Court’s determination on a ques-

tion of “legislative” fact somehow forecloses Congress from

subsequently making contrary findings on the same question.

After all, the very concept of “legislative” facts is premised on

the assumption that such facts are ones that the legislature is

uniquely well-equipped to find, in light of the legislature’s

superior capacity to “amass and evaluate the vast amounts of

data” relevant to such factfinding. Turner 1], 520 U.S. at 195

(citations omitted). At most, to the extent that this Court’s

decision in Stenberg could be read as treating the medical

necessity of partial-birth abortion as a question of “legisla-

tive” fact, its resolution of that factual issue woule merely

foreclose lower courts from making contrary findings, in or-

der to ensure that those courts do not reach inconsistent re-

sults on the constitutionality of materially identical legisla-

tion. See A Woman's Choice—East Side Women’s Clinic v.

Newman, 305 F.3d 684, 688 (7th Cir. 2002) (noting that

“treating the matter as one of legislative fact produces the

nationally uniform approach that Stewberg demands”), cert.

denied, 537 U.S. 1192 (2003). It would not permanently fore-

close Congress from making contrary findings.

In any event, the better reading of Stenberg is that it did

not treat the medical necessity of partial-birth abortion as a

question of “legislative” fact at all. Although the Court noted

that ether district courts had generally “reached similar fac-

tual conclusions” to that reached by the district court in

Stenberg, 530 U.S. at 932, and quoted at some length from

statements made by a physician group in an amicus brief, id.

at 935, 936, the Court primarily relied on the evidence pre-

sented to, and the factual findings made by, the district court,

see, ¢.g., id. at 931-932, 934, 936-937. The district court, in

turn, made clear that it was considering partial-birth abor-

tion only as it was performed by the plaintiff in that case

—perhaps not surprisingly, given that the court appeared to

view the plaintiff's claim as an as-applied challenge. Carhart

v. Stenberg, 11 F. Supp. 2d 1099, 1120 (D. Neb. 1998) (noting

“the absence of specific evidence about other doctors and pa-

tients”), aff'd, 192 F.3d 1142 (&th Cir. 1999).

The practical consequence of the court of appeals’ ap-

proach would thus be to treat the factual findings of the dis-

trict court in Stenberg, based on the particular circumstances

of the plaintiff before it and made following a trial that lasted

only one day, as binding nationwide and effectively foreclos-

ing Congress from making contrary findings on the same

topic—despite the fact that Congress made its findings based

on a more recent, and more robust, evidentiary record. See

Act § 2(5), 117 Stat. 1202 (noting that “much of [the evidence

presented to Congress] was compiled after the district court

hearing in Stenberg, and thus not included in the Stenberg

trial record”). Because Stenberg did not foreclose Congress

from making factual findings on the necessity of partial-birth

abortion, but instead merely upheld the district court's find-

ings in that case on the particular record before it, the court

of appeals clearly erred by refusing to defer to Congress's

findings.

3. Congress's Findings On The Medical Necessity Of

Partial-Birth Abortion Are Supported By Substantial

Evidence

While the court of appeals refused to defer to Congress's

factual findings at all, the district court seemingly recognized

that Congress’s findings were entitled to deference, but in-

stead held that Congress’s findings were not supported by

substantial evidence. In analyzing Congress’s findings, how-

ever, the district court asked the wrong question: namely,

whether substantial evidence supported the proposition that

no substantial medical authority supported the proposition

that partial-birth abortion was ever necessary to preserve the

mother’s health. Pet. App. 460a-461la. The relevant question

is instead whether substantial evidence supported Congress's

ultimate finding that “partial-birth abortion is never medi-

cally indicated to preserve the health of the mother.” Act

§ 2(14)(0), 117 Stat. 1206." Because substantial evidence

plainly supported that finding, it is entitled to deference, and

respondents’ contention that the Act is facially invalid be-

cause it lacks a health exception should be rejected.

a. In engaging in “substantial evidence” review, a review-

ing court should not “reweigh the evidence de novo, or * * *

Even if Stenberg were read to hold that the relevant constitutional test

was whether the plaintiff had presented substantial medical authority in sup-

port of the proposition that prohibiting D& X abortions would create significant

health risks, but see pp. 16-18, sapra, such a test should apply only in the ab-

sence of congressional findings, not in the face of them, in light of Congress's

comparative expertise in making findings on issues of medical or scientific

judgment. Cf. Stenberg, 530 US. at 968 (Kennedy, J., dissenting) (noting that

courts “are ill-equipped to evaluate the relative worth of particular surgical

procedures” and that legislatures “have superior fact finding capabilities in this

regard”).

replace Congress’ factual predictions with [its] own.” Turner

17,520 U.S. at 211. Instead, a reviewing court is required to

defer to a congressional fincing even if the “evidence is in

conflict” and inconsistent conclusions could thus be drawn

from that evidence. /bid.; see id. at 208, 210. Although a re-

viewing court may consider not only the evidence that was

before Congress, but also any evidence adduced at trial, in

engaging in “substantial evidence” review, id. at 195, 212, the

critical inquiry is whether there is sufficient evidence to sug-

gest that Congress's determination was reasonabl —not

whether the reviewing court would reach the same determina-

tion as Congress on the basis of the record that Congress had

before it (as supplemented by any evidence adduced at trial).

See, e.g., id. at 210-211; Rostker, 453 U.S. at 82-83.

b. Substantial evidence supported Congress’s finding that

partial-birth abortion is never necessary to preserve the

mother’s health.

i. Testimony from physicians. As the district court ac-

knowledged, most of the physicians who appeared before Con-

gress testified in favor of the Act. Pet. App. 58a. Their testi-

mony strongly supported Congress's findings concerning the

medical necessity of partial-birth abortion.

Dr. Kathi Aultman, a fellow of the American College of

Obstetricians and Gynecologists (ACOG), testified that “[t]he

ban on partial-birth abortion would not endanger a woman’s

health because it isn’t medically necessary and there are stan-

dard alternative methods available at every gestational age.”

She stated that “there does not appear to be any identified

situation in which intact D&X is the only appropriate [abor-

tion] procedure.” She suggested that, because lengthy dila-

tion is required before a partial-birth abortion can be per-

formed, partial-birth abortion could not be used where a

woman required an immediate abortion because of a medical

emergency. And she noted that D&X abortions may pose

greater health risks than D&E abortions: namely, an in-

creased risk of cervical incompetence and similar or greater

risks of hemorrhaging, infection, and other complications.

Pet. C.A. App. 578-584.

Dr. Curtis Cook, an assistant professor of medicine at

Michigan State University and ACOG fellow specializing in

maternal-fetal medicine, testified that, in ten years, he had

never “experienced a single clinical situation where | partial-

birth abortion] has ever been required or even considered a

superior option clinically” to other types of abortion. He fur-

ther testified that he had consulted with his colleagues and

had “yet to find a single individual who has experienced a

clinical situation that would require this procedure.” He sug-

gested that partial-birth abortion presented various safety

risks, including “potential cervical complications” from the

placement of multiple dilators into the cervix; additional risks

from the internal rotation of the fetus to a feet-first position,

a practice that “has been largely abandoned in modern obstet-

ries”; and other risks, including hemorrhaging and infection.

He stated that he had been contacted by women who had suf-

fered “subsequent pregnancy complications” after undergoing

partial-birth abortions. Pet. C.A. App. 544-546, 597-600, 610.

Dr. Mark Neerhof, an associate professor of obstetrics

and gynecology at Northwestern University specializing in

maternal-fetal medicine, testified that partial-birth abortion

“poses serious medical risks to the mother.” He contended

that the rotation of the fetus “carries risks of uterine rupture,

abruption, amniotic fluid embolus, and trauma to the uterus,”

and that the use of a sharp object to puncture the skull of the

fetus presents “the risk of iatrogenic laceration and secondary

hemorrhage.” He added that “|njone of these risks are medi-

cally necessary because other procedures are available” for

late-term abortions. Pet. C.A. App. 862-866.

Dr. Nancy Romer, a professor of obstetrics and gynecol-

ogy at Wright State University and ACOG fellow, testified

that, “li}f | partial-birth abortion] truly were superior to other

methods of second-trimester termination, there would be

more physicians using it; there would be more physicians

trained in it; and it would be described in the medical litera-

ture.” She asserted that partial-birth abortion “offers no ad-

vantage in safety nor efficacy over other methods of termina-

tion,” and that physicians at her hospital “have never found it

necessary to perform this procedure to save the life of a

woman” and “have found alternatives that we feel are equally

efficacious and safe.” Pet. C.A. App. 161-163.

Finally, Dr. Pamela Smith, director of medical education

in the obstetrics and gynecology department at Mount Sinai

Hospital in Chicago and ACOG member, testified that “there

are absolutely no obstetrical situations encountered in this

country which require a partially delivered human fetus to be

destroyed to preserve the life or health of the mother.” She

added that the extended dilation of the cervix during partial-

birth abortions could lead to cervical incompetence, threaten-

ing the future fertility of the patient; that the rotation of the

fetus risks trauma to the mother; and that the use of a sharp

instrument makes it “very easy to accidentally poke a hole” in

the uterus or cervix. She concluded that partial-birth abor-

tion is “too lengthy” and “too risky” and that “there are too

many other alternatives.” Pet. C.A. App. 144-148, 218."

ii. Other evidence. In addition to the testimony of physi-

cians who appeared before Congress, other evidence in the

legislative record—including statements from leading physi-

In addition, Congress heard testimony (and received evidence) from a

significant number of opponents of a ban on partial-birth abortion. See,

e.g., Pet. C.A. App. 68-67, 446-447, 568, 646-049, 1042-1044. Congress also

invited several well-known practitioners of partial-birth abortion to testify at

committee hearings, but they declined to appear. See, e.g., id. at 65,

cian groups, articles in medical journals, and written state-

ments from other physicians—supported Congress’s findings.

In making its findings, Congress expressly credited the

conclusion of the American Medical Association (AMA) that

partial-birth abortion is “never the only appropriate [abor-

tion] procedure.” Act § 2(14)(C), 117 Stat. 1204 (internal quo-

tation marks omitted). The AMA expressed that conclusion

in a variety of different ways. The AMA’s board of trustees

issued a report in which it stated that, “l|alecording to the

scientific literature, there does not appear to be any identified

situation in which intact D&X is the only appropriate proce-

dure to induce abortion.” In a separate fact sheet concerning

the AMA's support for an earlier version of the Act, the board

of trustees noted that “AMA's expert panel * * * could not

find any identified circumstance where |[D&X] was the only

appropriate alternative” (internal quotation marks omitted).

And in a press release, the AMA noted that partial-birth abor-

tion is “broadly disfavored * * * both by experts and by the

public,” and added that “[ilt is a procedure which is never the

only appropriate procedure and has no history in peer re-

viewed medical literature or in accepted medical practice de-

velopment.” Pet. C.A. App. 758, 775, 1002, 1004.

Although ACOG, unlike the AMA, opposed earlier ver-

sions of the Act, it reached a similar conclusion about the

medical necessity of partial-birth abortion. In a formal policy

statement issued in 1997 and then reaffirmed in 2000, ACOG

conceded that “{a] select panel convened by ACOG could iden-

tify no circumstances under which |partial-birth abortion]

would be the only option to save the life or preserve the health

of the woman.” Although ACOG proceeded to suggest that

partial-birth abortion “may be the best or most appropriate

procedure in a particular circumstance to save the life or

preserve the health of the woman” (emphasis added), ACOG

did not identify any circumstance in which that would be true.

While ACOG’s vice president likewise asserted in a letter that

“there are rare occasions when intact D&X is the most appro-

priate procedure” and “is medically necessary,” he also failed

to elaborate on that assertion. Pet. C.A. App. 1056, 1297.

Moreover, Congress considered various articles in medical

journals which expressed similar doubts about the medical

necessity of partial-birth abortion. For example, in an article

published in the Journal of the American Medical Association,

Dr. LeRoy Sprang and Dr. Neerhof stated that “(t}here exist

no credible studies on intact D&X that evaluate or attest to its

safety”; that the procedure may increase the risk of uterine

rupture because of the necessity of rotating the fetus into a

feet-first position; that the procedure “could result in severe

bleeding and the threat of shock or even maternal death”

from the use of a sharp object to puncture the skull of the

fetus; and that none of those risks is “medically necessary,”

because “other procedures are available” for late-term abor-

‘tions. Pet. C.A. App. 896-899.

Finally, in addition to the physicians who appeared be-

fore Congress, numerous other physicians submitted written

statements attesting that partial-birth abortion is never medi-

cally necessary. For example, Dr. Camilla Hersh, an assistant

professor of obstetrics and gynecology at Georgetown Univer-

sity and ACOG fellow, wrote that partial-birth abortion pres-

ents risks of cervical incompetence, serious infection, and

hemorrhaging. She also rejected the argument that partial-

birth abortion was necessary in cases involving various spe-

cific maternal or fetal conditions. Pet. C.A. App. 969-972.

iii. Trial evidence. At trial, still other physicians testified

that partial-birth abortion was never medically necessary,

thereby confirming the reasonableness of Congress's findings.

Dr. Watson Bowes, a professor emeritus of obstetrics and

gynecology at the University of North Carolina specializing

in maternal-fetal medicine, testified that he had never seen a

situation in which, in his view, there would be any advantage

to using partial-birth abortion over any other type of abortion.

J.A. 260-263, 268.

Dr. Steven Clark, a professor of obstetrics and gynecology

at the University of Utah and ACOG member specializing in

maternal-fetal medicine, testified that “under no circumstance

is D&X abortion necessary to preserve the life or health of the

mother” and that “there are in fact grave concerns regarding

the long-term safety of this procedure.” He explained that it

was “very rare” that an abortion would ever be necessary to

preserve the health of the mother, and that D&E was an “in-

credibly safe procedure with negligble risk of serious compli-

cations in skilled hands.” He then reviewed each of the vari-

ous specific conditions for which partial-birth abortion was

allegedly the safest abortion method and explained that the

asserted safety advantages were either hypothetical or non-

existent. He concluded that he could not “imagine any medi-

cal condition * * * in which this D&X procedure might be

helpful” at any gestational age. J.A. 919, 922, 924; Pet. C.A.

App. 2017, 2026, 2046, 2049-2106, 2121-2122.

Dr. Charles Lockwood, chairman of the department of

obstetrics and gynecology at Yale University, testified that he

was unaware of any medical evidence “that the D&X offers

any safety advantage over D&E or medical induction,” and

that partial-birth abortion itself posed a potential long-term

risk to maternal health. He explained in detail why partial-

birth abortion would not be the safest method of abortion in

cases involving various specific conditions, and concluded that

he “really can't conceive of any specific condition that would

specifically warrant a D&X.” Notably, he so testified despite

the fact that he was personally opposed to the Act. J.A. 391-

399, 417-430, 436-438, 442.

Dr. Elizabeth Shadigian, an associate professor of obstet-

rics and gynecology at the University of Michigan and ACOG

fellow, testified that “there is no basis to say the D&X is safer

than any other procedure.” She stated that she could not

“think of a situation” in which partial-birth aboruon would be

necessary “because of a particular type of health condition

that the mother is facing in the pregnancy.” J.A. 365-368, 372.

Finally, Dr. LeRoy Sprang, an ACOG fellow, testified that

he had “never seen a situation where a D&X would be the

safest, the best, or the only procedure to use to protect the

health of the mother.” He added that other physicians had

been unable to identify a single situation in which partial-

birth abortion would be the best method to preserve the

mother’s health. J.A. 282-289, 304, 305."

c. To be sure, respondents presented evidence at trial

suggesting that partial-birth abortion may be marginally

safer than other types of abortion in specific circumstances

(e.g., where the mother has preeclampsia or placenta previa)

or as a more categorical matter (e.g., because a partial-birth

abortion requires fewer instrument passes in the uterus than

a standard D&E abortion). As noted above, however, the

"In addition, some of the testimony of respondents’ experts supported

Congress's findings. One of those experts, testifying anonymously, stated that

there is no maternal health condition that would require a partial-birth

abortion, rather than a D&E abortion. Pet. C.A. App. 1377. In addition, Dr.

Cassing Hammond, an assistant professor of obstetrics and gynecology at

Northwestern University and an ACOG member, testified that there are no

objective scientific data to support the proposition that, to the extent that a

standard D&E abortion requires more instrument passes in the uterus, it

increases maternal risk. J.A. 742, 744, 817.

The primary evidence on which respondents relied at trial, however,

does not support the proposition that partial-birth abortion is ever medically

necessary to preserve a mother’s health. Respondents introduced a peer-

reviewed study led by Dr. Stephen Chasen, a plaintiff in the Second Circuit

litigation challenging the Act. That study, however, concluded that partial-

birth abortion and standard D&E abortion had no significant differences in

short-term complication rates, blood loss, or procedure time. Moreover,

mere existence of conflicting evidence does not render Con-

gress’s factual findings invalid. Indeed, to the extent that the

district court concluded that there was a division of medical

opinion on the medical necessity of partial-birth abortion,

see, e.g., Pet. App. 463a, the necessary implication is that sub-

stantial evidence would support the conclusion that partial-

birth abortion was never medically necessary.

At various points in its opinion, the district court sug-

gested that deference to Congress’s factual findings was inap-

propriate because the physicians who testified that partial-

birth abortion was never medically necessary did not carry

out partial-birth abortions themselves. See, e.g., Pet. App.

467a-468a. It is hardly surprising, however, that physicians

who believed that partial-birth abortion was never medically

necessary would not carry out such abortions. Many of those

physicians, moreover, were maternal-fetal experts who spe-

cialized in treating women with high-risk pregnancies (includ-

ing women who had suffered complications from abor-

tions)—and who were therefore perfectly capable of assessing

the risks that would attend partial-birth abortions, even if

they did not conduct that particular type of abortion them-

selves. See J.A. 309-316, 399-400; Pet. C.A. App. 579, 610.

Indeed, insofar as typical abortion providers, unlike physi-

cians specializing in obstetrics and gynecology, do not provide

long-term follow-up care to their patients, the testifying phy-

sicians were arguabiy better situated to assess long-term com-

plications from abortions. See J.A. 182-183, 562-563, 864-865;

because long-term follow-up was conducted with fewer than 20% of the sub-

jects, the study contains no meaningful conclusions about long-term complica-

tions: most notably, the risk of cervical incompetence from partial-birth abor-

tion. Indeed, the study showed a nearly threefold increase in the risk of pre-

mature birth in women who had undergone partial-birth abortions, which may

result from the increased dilation used in the procedure. J.A. 479-494, 564-566,

615-617; Pet. CLA. App. 2114.

Pet. C.A. App. 1372. And the very fact that practitioners in

the field repeatedly indicated that partial-birth abortions

were never medically necessary or justified, despite the con-

trary opinions of a few fellow practitioners, suggests that any

differences in safety are debatable and sufficiently marginal

that most practitioners (and certainly, therefore, Congress)

can confidently rule out the need to resort to the procedure.

On the other hand, only a few physicians perform partial-birth

abortions, and many of those physicians are general practitio-

ners, not specialists or academics. See Pet. C.A. App. 161-

162, 598, 606. There is thus no basis for concluding that Con-

gress’s findings were not supported by substantial evidence

simply because the district court may have disagreed with

Congress and concluded that the physicians who testified

against the Act were more credible.

d. Although the district courts in the other two cases chal-

lenging the Act ultimately agreed with the district court’s

conclusion in this case concerning the validity of Congress's

findings, those district courts made various findings of their

own, based on virtually identical records, suggesting that

substantial evidence would support the proposition that

partial-birth abortion is never medically necessary. In Na-

tional Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436

(S.D.N.Y. 2004), aff'd, 437 F.3d 278 (2d Cir. 2006), the district

court ultimately found that “a division of medical opinion ex-

ists about the necessity of D&X to preserve women’s health.”

330 F. Supp. 2d at 482. However, after comprehensively re-

viewing the testimony on the comparative safety of various

abortion procedures, id. at 467-474, 475-478, the court found

that “the Government's expert witnesses reasonably and ef-

fectively refuted Plaintiffs’ proffered bases for the opinion

that D&X has safety advantages over other second-trimester

abortion procedures.” /d. at 479. The court also found that

“liJn no case * * * could Plaintiffs point to a specific patient

or actual circumstance in which D&X was necessary to pro-

tect a woman's health” and that “many of Plaintiffs’ purported

reasons for why D&X is medically necessary” are either “only

theoretical” or “false.” /d. at 480. Similarly, in Planned Par-

enthood Federation of America, Inc. v. Ashcroft, 320 F. Supp.

2d 957 (N.D. Cal. 2004), aff’d, 435 F.3d 1163 (9th Cir. 2006),

the district court ultimately found that “there continues to be

a division of opinion among highly qualified experts regarding

the necessity or safety of intact D&E.” 320 F. Supp. 2d at

1033. Like the district court in National Abortion Federa-

tion, however, the court found that “plaintiffs have not dem-

onstrated the existence of any particular situation * * * in

which an intact D&E would be a doctor's only option to pre-

serve the life or health of a woman.” /d. at 1002.

Like the district court in this case, therefore, those courts

would likely have upheld the statute if they had focused on the

correct question: namely, whether substantial evidence sup-

ported Congress's ultimate finding that partial-birth abortion

is never necessary to preserve the mother’s health. Because

substantial evidence did support that finding, the Act is not

facially invalid because it lacks a health exception.

C. Even Assuming That Partial-Birth Abortion Has Mar-

ginal Health Advantages In Some Cases, A Statute That

Prohibits Partial-Birth Abortion Does Not Impose An

Undue Burden On A Woman's Access To An Abortion

Even if the Coart refused to defer to Congress's consid-

ered findings, respondents’ trial evidence at most suggested

that partial-birth abortion is marginally safer than other

abortion procedures in some circumstances. Absent a show-

ing that it would “create sigvificant health risks,” however,

a statute prohibiting partial-birth abortion does not impose an

undue burden on a woman’s access to an abortion. Stenberg,

530 U.S. at 932 (emphasis added).

Casey’s undue-burden standard effectively replaced the

strict-scrutiny standard from Roe. See 505 U.S. ai 876. In

adopting the undue-burden standard, the joint opinion in

Casey emphasized that the government has a “profound inter-

est in potential life,” id. at 878, and reasoned that “|t}he very

notion that the |government] has a substantial interest in

potential life leads to the conclusion that not all [abortion]

regulations must be deemed unwarranted,” jd. at 876. Where

the regulation at issue limits a specific method of abortion, the

difference in safety must be significant enough that elimina-

tion of that method places a “substantial obstacle in the path

of a woman seeking an abortion,” in light of the continuing

availability of other methods. /d. at 878. A different rule

would force courts to make difficult medical judgment calls

and would devalue the vital government interests that Casey

sought to bring back into the equation in reviewing abortion

regulations.

The protection of innocent human life—in or out of the

womb—is the most compelling interest the government can

advance. The Act implicates not only the government’s com-

pelling interest in protecting human life, but also the govern-

ment’s specific (and no less compelling) interest in prohibiting

a particular type of abortion procedure that closely resembles

infanticide. See, e.g., Stenberg, 530 U.S. at 960, 962 (Kennedy,

J., dissenting) (noting that, “[ijn light of the description of the

D&X procedure, it should go without saying that Nebraska's

ban on partial birth abortion furthers purposes States are

entitled to pursue” and adding that “Nebraska was entitled to

find the existence of a consequential moral difference between

the |D&X and D&E} procedures”); id. at 1006 (Thomas, .J.,

dissenting) (stating that “|t|here is no question that the State

of Nebraska has a valid interest—one not designed to strike

at the right itself—in prohibiting partial birth abortion” and

adding that “States may, without a doubt, express | their] pro-

found respect [for the life of the unborn] by prohibiting a pro-

cedure that approaches infanticide”).

In passing the Act, Congress specifically found that

partial-birth abortion “blurs the line between abortion and

infanticide in the killing of a partially-born child just inches

from birth,” Act § 2(14)(O), 117 Stat. 1206; that partial-birth

abortion “also confuses the medical, legal, and ethical duties

of physicians to preserve and promote life,” § 2(14)(J), 117

Stat. 1205; and that failing to prohibit the procedure would

“promote|| a complete disregard for infant human life,”

§$ 2(14)(L), 117 Stat. 1206, and “further coarsen society to the

humanity of not only newborns, but all vulnerable and inno-

cent human life, making it increasingly difficult to protect

such life,” § 2(14)(N), 117 Stat. 1206. In light of the relative

strength of the government’s interest in prohibiting partial-

birth abortion, and the relative weakness of a woman’s inter-

est in having access to a particular type of abortion procedure

that has no health advantages (according to Congress), or at

most marginal health advantages, when compared with other,

unregulated types of procedures, the Act is constitutional

under Casey because it does not impose an undue burden on

a woman’s access to an abortion.

Holding that the Act is valid only if it contains a health

exception would substantially undermine the government's

compelling interests in preventing partial-birth abortion. As

proponents of the Act appreciated,” a health exception, no

See, «.g., H.R. Rep. No. 58, 108th Cong., Ist Sess. 69 (2003) (statement

of Rep. Chabot) (stating that “a health exception, no matter how narrowly

drafted, gives the abortionist unfettered discretion in determining when a

partial-birth abortion may be performed”); 149 Cong. Rec. H4940 (daily ed.

June 4, 2003) (statement of Rep. Sensenbrenner) (contending that “|a}bor-

tionists have demonstrated that they can and will justify any abortion on the

grounds that it, in the judgment of the attending physician, is necessary to

avert serious adverse health consequences to the woman”); 144 Cong. Ree.

matter how narrowly crafted, would potentially give a physi-

cian unfettered discretion in determining when a partial-birth

abortion may be performed. Cf. Stenberg, 530 U.S. at 972

(Kennedy, J., dissenting). Congress could thus have reason-

ably determined that a ban on partial-birth abortion that in-

cludes a health exception would amount to no ban at all.

D. To The Extent That The Court Believes That Stenberg

Compels A Different Result, It Should Be Overruled

For the reasons explained above, the Act is constitutional

under the principles adopted by the joint opinion in Casey and

applied by this Court in Stenberg, notwithstanding the ab-

sence of a health exception. Although this Court reached a

contrary result in Stenberg with respect to the state statute

at issue there, Stenberg is distinguishable in a number of im-

portant respects from this case. Most notably, the statute at

issue here is an Act of Congress accompanied by congressio-

nal findings—including the ultimate finding that partial-birth

abortion is never medically indicated—that are amply sup-

ported by substantial evidence and therefore entitled to defer-

ence. In addition, the statute at issue carefully defines

partial-birth abortion so that it does not reach the more com-

mon D&E procedure. See pp. 45-48, infra. Moreover, the

trial record supporting the constitutionality of the Act is much

more extensive than in Stenberg, where the trial lasted only

one day (whereas the trial in this case lasted two weeks).

If this Court nevertheless concludes for any reason that

its decision in Stenberg compels the conclusion that the Act is

unconstitutional, however, Stenberg should be overruled. To

83607 (daily ed. Mar. 12, 2003) (statement of Sen. Santorum) (asserting that,

“liln practice, of course, health means anything, so there is no restriction at

all”); 143 Cong. Ree. 8355 (1997) (statement of Sen. Hutchinson) (noting that

health exception “would allow any abortionist to kill a baby even after viability

merely by signing a permission slip to himself, a so-called certification”).

be sure, values of stare decisis help ensure continuity in the

law as developed by this Court. However, to the extent that

the Court construes Stenberg to require invalidation of the

statute at issue, continuing adherence to Stenberg could not

further those values, because such a reading of Stenberg

would be unfaithful to the Court’s prior precedents, including

Casey, see Stenberg, 530 U.S. at 957, 960-963, 979 (Kennedy,

J., joined by Rehnquist, C.J., dissenting); id. at 1005-1020

(Thomas, J., joined by Rehnquist, C.J., and Scalia, J., dissent-

ing); National Abortion Federation v. Gonzales, 437 F.3d at

292 (Walker, C.J., concurring); it would risk “caus[ing| * * *

society as a whole to become insensitive, even disdainful, to

life, including life in the human fetus,” Stenberg, 530 U.S. at

961 (Kennedy, J., dissenting); and it would therefore only

further unsettle this Court’s abortion jurisprudence. More-

over, to the extent that Stenberg is read to require courts to

disregard legislative findings and make fine-tuned judgments

about the relative merits of particular medical techniques, it

would place judges in an untenable position and would prove

unworkable in practice. Indeed, the different analytical ap-

proaches reflected in the various lower-court opinions on the

constitutionality of the Act demonstrate that Stenberg has

created confusion and proven unworkable already.

Il. THE ACT IS NEITHER UNCONSTITUTIONALLY OVER-

BROAD NOR UNCONSTITUTIONALLY VAGUE

Before the lower courts, respondents also contended that

the Act was facially invalid because (1) it reached not only

D&X abortions, but also certain standard D&E abortions, and

thus was unconstitutionally overbroad, and (2) it was uncon-

stitutionally vague. The district court agreed with the first

contention, Pet. App. 507a-521a, but ultimately disagreed with

the second, id. at 522a-529a. Although the court of appeals

did not address either contention in light of its ruling on the

lack of a health exception, it would be appropriate for respon-

dents to invoke their alternative arguments against the stat-

ute and in support of the judgment, and appropriate for this

Court to consider them. See Supp. Br. in Support of Pet. for

Cert. 8-9 & n.2. Each of those contentions lacks merit.

A. The Act Is Not Unconstitutionally Overbroad

1. In Stenberg, this Court held that the Nebraska stat-

ute at issue was invalid not only because it lacked a health

exception, but also because it defined “partial birth abortion”

in such a way as to reach standard D&E abortions as well as

D&X abortions, and thereby imposed an undue burden on a

woman's access to an abortion. 530 U.S. at 938-946. That

statute barred a physician from “deliberately and intention-

ally delivering into the vagina a living unborn child, or a sub-

stantial portion thereof, for the purpose of performing a pro-

cedure that the person performing such procedure knows will

kill the unborn child.” Neb. Rev. Stat. Ann. § 28-326(9) (Supp.

1999). The Court noted that a standard D&E abortion “will

often involve a physician pulling a ‘substantial portion’ of a

still living fetus, say, an arm or leg, into the vagina prior to

the death of the fetus.” 530 U.S. at 939. The Court thus rea-

soned that, “|e|ven if the statute’s basic aim is to ban D&X, its

language makes clear that it also covers a much broader cate-

gory of procedures.” /bid. The Court explained that the Ne-

braska statute did “not track the medical differences between

D&E and D&X,” nor did it “anywhere suggest that its appli-

cation turns on whether a portion of the fetus’ body is drawn

into the vagina as part of a process to extract an intact fetus

after collapsing the head as opposed to a process that would

dismember the fetus.” /bid. “The plain language” of the stat-

ute, the Court concluded, “covers both procedures.” /bid.

2. The Act contains a definition of “partial-birth abor-

tion” that differs in two critical respects from the statutory

definition at issue in Stenberg. First, the Act applies only

where the person performing the abortion “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.” Act § 3, 117 Stat. 1206-1207 (18 U.S.C.

1531(b)(1) (Supp. II] 2003)). By specifying so-called anatomi-

cal “landmarks,” the Act excludes standard D&E abortions in

which a smaller portion of the fetus, such as a foot or arm, is

drawn through the cervix (or outside the mother’s body alto-

gether), and torn from the fetus, while the fetus is still living.

Second, the Act applies only where the person performing the

abortion also “performs |an| overt act, other than completion

of delivery, that kilis the partially delivered living fetus,” and

delivers the fetus with the purpose of performing that overt

act. /bid. By requiring a discrete “overt act,” the Act ex-

cludes standard D&E abortions in which the delivery of a

portion of the fetus and the performance of the lethal act (/.¢.,

the dismemberment of the fetus) are indistinguishable.

Not only is the Act’s definition more precise than the defi-

nition at issue in Stenberg, but the fact that this case involves

a federal statute gives the Court a much greater capacity to

interpret the statute to avoid any constitutional difficulties

than in a case, like Stenberg, involving a state statute. See,

e.g., City of Houston v. Hill, 482 U.S. 451, 474 (1987); Gooding

v. Wilson, 405 U.S. 518, 520 (1972); l/nited States v. Thirty-

Seven Photographs, 402 U.S. 363, 369-370 (1971); ef. Stenberg,

530 U.S. at 944-945. The Act’s textual definition clearly re-

flects the intent to reach D&X abortions, but not standard

D&E abortions. If there is any doubt on that score, however,

the Court can interpret the statute to avoid any constitutional

concerns. This is not a context in which the Court should hold

Congress to impossible standards of draftsmanship.

3. The district court held that the Act still reached cer-

tain D&E abortions: namely, abortions in which a physician

delivers the required portion of the fetus, but only then per-

forms a discrete act that kills the fetus (“either by dividing it

into two or more pieces * * * or by reducing the skull and

removing the fetus intact”). Pet. App. 517a-518a. Where,

however, a physician delivers a major portion of the fe-

tus—i.c., the entire fetal head (in the case of a head-first de-

livery) or any part of the trunk past the navel (in the case of

a feet-first delivery)—and then performs a discrete act that

aborts the fetus, the procedure constitutes a “partial-birth

abortion,” in the literal sense of the phrase, rather than a

standard D&E abortion, regardless whether the ultimate

lethal act is (1) the dismemberment of the fetus, (2) the punc-

turing of its skull and vacuuming out of its brain, or (3) some

other act (besides completion of delivery). Moreover, the Act

would apply only where the physician had the specific intent

to deliver the requisite portion of the fetus for the purpose of

performing the ultimate lethal act at the outset of the proce-

dure. See Act § 3, 117 Stat. 1206-1207 (18 U.S.C. 1531(b)(1)

(Supp. I1I 2003)). The Act would therefore not cover situa-

tions in which a physician intended only to perform a standard

D&E abortion, but ultimately had to perform a partial-birth

abortion (for example, if the physician unintentionally deliv-

ered a major portion of the fetus, or if the physician at-

tempted to deliver the living but non-viable fetus intact but

was unable to do so because the head became stuck).'' Be-

' Inholding that the Act was overbroad, the Ninth Circuit emphasized the

fact that the Act does not contain an express exception for D&E abortions.

Planned Parenthood Federation, 4X5 F 3d at 1176-1177. In Stenberg, however,

the Court made clear that including such an exception was only an “example”

of how a legislature could draw a permissible statute regulating partial-birth

abortion, and suggested that the critical inquiry was instead whether the stat-

ute “trackled| the medical differences” between partial-birth abortion and

cause the Act reaches no standard D&E abortions, the district

court erred by holding that it was overbroad."

B. The Act Is Not Unconstitutionally Vague

1. In order to survive a vagueness challenge, a statute

“must give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act

accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). The Constitution, however, does not impose “impossi-

ble standards of clarity,” Kolender v. Lawson, 461 U.S. 352,

361 (1983) (internal quotation marks omitted), nor does it

require “mathematical certainty” from statutory language,

Grayned, 408 U.S. at 110. Instead, a statute is not vague if it

is “clear what the [statute] as a whole prohibits.” /bid. More-

over, “speculation about possible vagueness in hypothetical

situations not before the Court will not support a facial attack

on a statute when it is surely valid in the vast majority of its

intended applications.” Hill v. Colorado, 530 U.S. 703, 733

(2000) (internal quotation marks omitted).

2. The Act readily satisfies the relatively modest re-

quirements of the void-for-vagueness doctrine. The Act pro-

hibits only a particular type of abortion in which the physician

“deliberately and intentionally vaginally delivers a living fe-

tus” up to a specific anatomical point “outside the body of the

mother”; does so “for the purpose of performing an overt act

that the person knows will kill the partially delivered living

fetus”; and then “performs the overt act, other than comple-

tion of delivery, that kills the partially delivered living fetus.”

Act § 3, 117 Stat. 1206-1207 (18 U.S.C. 1531(b)(1) (Supp. IIT

2003)). In addition, the physician must “knowingly” perform

other, constitutionally protected types of abortion, 530 ULS. at 939.

"Moreover, even if the Act were unconstitutional only in some small

number of its applications, the Act would not be facially invalid. See pp. 18-20,

supra.

that type of abortion. § 3, 117 Stat. 1206 (18 U.S.C. 1531(a)

(Supp. III 2003)). It is hard to imagine how the proscribed

conduct could be defined any more precisely, at least without

dramatically narrowing the scope of the statute.

3. Before the district court, respondents contended that

various terms and phrases in the Act were unconstitutionally

vague. See Pet. App. 528a. Those contentions, however, lack

merit. Although the Act prohibits “partial-birth abortion,”

any alleged vagueness in that phrase is irrelevant, because

the Act proceeds to define the phrase with particularity. And

none of the terms or phrases used within that definition is

ambiguous. As the district court noted, the phrase “overt act”

is a “standard statutory term|] of art,” /d. at 529a, which ap-

pears in numerous other criminal statutes. See, e.g., 18

"U.S.C. 1117, 1201(¢), 2101(a). And “overt act” is immediately

qualified by the phrase “other than the completion of deliv-

ery,” which serves to limit its scope. In addition, as the dis-

trict court also noted, the term “living” in the phrase “living

fetus” is a “commonplace word” of which “doctors have a

practical understanding.” Pet. App. 529a. “Living” refers to

a fetus that is either potentially or actually viable: 7.e., a fe-

tus that “has a detectable heartbeat or pulsating umbilical

cord.” Planned Parenthood Federation, 435 F.3d at 1184. In

short, because the Act contains no ambiguous terms and

phrases, and because the Act as a whole plainly provides suffi-

cient notice of the conduct that it prohibits, the district court

correctly held that the Act is not unconstitutionally vague.

Ill. BECAUSE THE ACT IS CONSTITUTIONAL, THE COURT

NEED NOT FASHION ANY REMEDY )

As explained above, the Act materially differs from the

state statute at issue in Stenberg and is constitutional under

a proper analysis. In the event, however, that this Court were

to identify some aspect in which the Act is invalid, it may be

possible to craft narrower injunctive relief along the lines

suggested in Ayotte v. Planned Parenthood of Northern New

England, supra. Because the availability of narrower injunc-

tive relief turns both on the nature of the statute’s infirmity

and on a statute-specific inquiry into legislative intent, the

Court may wish to remand so that the lower courts can ad-

dress that issue in the first instance. In any event, because

the statute is, in fact, constitutional, further development of

the remedial question implicated in Ayotte will need to wait

for a different case. Here, Congress has identified a single,

rarely used abortion procedure that it found to be medically

unnecessary. Upholding that statute merely requires the

Court to reaffirm the government’s critical interests in regu-

lating abortion procedures to protect life and prohibit proce-

dures that blur the line between abortion and infanticide.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

GREGORY G. KATSAS

Deputy Assistant Attorney

General

KANNON K,. SHANMUGAM

Assistant to the Solicitor

General

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

TEAL LUTHY MILLER

Attorneys

MAY 2006

APPENDIX

UNITED STATES PUBLIC LAWS

108th Congress - First Session

Convening January 7, 2008 |

PL 108-105 (S 3)

Nov. 5, 2008

PARTIAL-BIRTH ABORTION BAN ACT OF 2003

An Act To prohibit the procedure commonly known as

partial-birth abortion.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

SEC. 1. SHORT TITLE.

This Act may be cited as the “Partial-Birth Abortion Ban

Act of 2003”.

SEC. 2. FINDINGS.

The Congress finds and declares the following:

(1) A moral, medical, and ethical consensus exists that the

practice of performing a partia!-birth abortion—an abortion

in which a physician deliberately and intentionally vaginally

delivers a living, unborn child’s body until either the entire

baby’s head is outside the body of the mother, or any part of

the baby’s trunk past the navel is outside the body of the

mother and only the head remains inside the womb, for the

purpose of performing an overt act (usually the puncturing

of the back of the child’s skull and removing the baby’s

brains) that the persen knows will kill the partially delivered

infant, performs this act, and then completes delivery of the

dead infant—is a gruesome and inhumane procedure that is

never medically necessary and should be prohibited.

(la)

(2) Rather than being an abortion procedure that is

embraced by the medical community, particularly among

physicians who routinely perform other abortion procedures,

partial-birth abortion remains a disfavored procedure that is

not only unnecessary to preserve the health of the mother,

but in fact poses serious risks to the long-term health of

women and in some circumstances, their lives. As a result,

at least 27 States banned the procedure as did the United

States Congress which voted to ban the procedure during

the 104th, 105th, and 106th Congresses.

(3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the

United States Supreme Court opined “that significant

medical authority supports the proposition that in some

circumstances, [partial birth abortion] would be the safest

procedure” for pregnant women who wish to undergo an

abortion. Thus, the Court struck down the State of

Nebraska's ban on partial-birth abortion procedures,

concluding that it placed an “undue burden” on women

seeking abortions because it failed to include an exception

for partial-birth abortions deemed necessary to preserve the

“health” of the mother.

(4) In reaching this conclusion, the Court deferred to the

Federal district court’s factual findings that the partial-birth

abortion procedure was statistically and medically as safe as,

and in many circumstances safer than, alternative abortion

procedures.

(5) However, substantial evidence presented at the

Stenberg trial and overwhelming evidence presented and

compiled at extensive congressional hearings, much of which

was compiled after the district court hearing in Stenberg,

and thus not included in the Stenberg trial record,

demonstrates that a partial-birth abortion is never necessary

to preserve the health of a woman, poses significant health

risks to a woman upon whom the procedure is performed and

is outside the standard of medical care.

(6) Despite the dearth of evidence in the Stenberg trial

court record supporting the district court’s findings, the

United States Court of Appeals for the Eighth Circuit and

the Supreme Court refused to set aside the district court’s

factual findings because, under the applicable standard of

appellate review, they were not “clearly erroneous”. A

finding of fact is clearly erroneous “when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed”. Anderson v. City of

Bessemer City, North Carolina, 470 U.S. 564, 573 (1985).

Under this standard, “if the district court’s account of the

evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently”. Id. at 574.

(7) Thus, in Stenberg, the United States Supreme Court

was required to accept the very questionable findings issued

by the district court judge—the effect of which was to

render null and void the reasoned factual findings and policy

determinations of the United States Congress and at least 27

State legislatures.

(8) However, under well-settled Supreme Court

jurisprudence, the United States Congress is not bound to

accept the same factual findings that the Supreme Court was

bound to accept in Stenberg under the “clearly erroneous”

standard. Rather, the United States Congress is entitled to

reach its own factual findings—findings that the Supreme

Court accords great deference—and to enact legislation

based upon these findings so long as it seeks to pursue a

legitimate interest that is within the scope of the

Constitution, and draws reasonable inferences based upon

substantial evidence.

(9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the

Supreme Court articulated its highly deferential review of

congressional factual findings when it addressed the

constitutionality of section 4(e) of the Voting Rights Act of

1965. Regarding Congress’ factual determination that

section 4(e) would assist the Puerto Rican community in

“gaining nondiscriminatory treatment in public services,”

the Court stated that “[i]t was for Congress, as the branch

that made this judgment, to assess and weigh the various

conflicting considerations * * *. It is not for us to review the

congressional resolution of these factors. It is enough that

we be able to perceive a basis upon which the Congress

might resolve the conflict as it did. There plainly was such a

basis to support section 4(e) in the application in question in

this case.”. Id. at 653.

(10) Katzenbach’s highly deferential re, iew of Congress’

factual conclusions was relied upon by the United States

District Court for the District of Columbia when it upheld

the “bail-out” provisions of the Voting Rights Act of 1965 (42

U.S.C. 1973¢), stating that “congressional fact finding, to

which we are inclined to pay great deference, strengthens

the inference that, in those jurisdictions covered by the Act,

state actions discriminatory in effect are discriminatory in

purpose”. City of Rome, Georgia v. U.S., 472 F. Supp. 221

(D.D.C, 1979) aff'd City of Rome, Georgia v. U.S., 446 U.S.

156 (1980).

(11) The Court continued its practice of deferring to

congressional factual findings in reviewing the consti-

tutionality of the must-carry provisions of the Cable

Television Consumer Protection and Competition Act of

1992. See Turner Broadcasting System, Inc. v. Federal

Communications Commission, 512 U.S. 622 (1994) (Turner 1)

and Turner Broadcasting System, Inc. v. Federal

Communications Commission, 520 U.S. 180 (1997) (Turner

Il). At issue in the Turner cases was Congress’ legislative

finding that, absent mandatory carriage rules, the continued

viability of local broadcast television would be “seriously

jeopardized”. The Turner | Court recognized that as an

institution, “Congress is far better equipped than the

judiciary to ‘amass and evaluate the vast amounts of data’

bearing upon an issue as complex and dynamic as that pre-

sented here”, 512 U.S. at 665-66. Although the Court

recognized that “the deference afforded to legislative

findings does ‘not foreclose our independent judgment of the

facts bearing on an issue of constitutional law,” its

“obligation to exercise independent judgment when First

Amendment rights are implicated is not a license to reweigh

the evidence de novo, or to replace Congress’ factual

predictions with our own. Rather, it is to assure that, in

formulating its judgments, Congress has drawn reasonable

inferences based on substantial evidence.”. Id. at 666.

(12) Three years later in Turner I1, the Court upheld the

“must-carry” provisions based upon Congress’ findings,

stating the Court’s “sole obligation is ‘to assure that, in

formulating its judgments, Congress has drawn reasonable

inferences based on substantial evidence.”” 520 U.S. at 195.

Citing its ruling in Turner I, the Court reiterated that “|wle

owe Congress’ findings deference in part because the

institution ‘is far better equipped than the judiciary to

“amass and evaluate the vast amounts of data” bearing upon’

legislative questions,” id. at 195, and added that it “owe|d]

Congress” findings an additional measure of deference out of

respect for its authority to exercise the legislative power.”.

Id. at 196.

(13) 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. Congress was informed by

extensive hearings held during the 104th, 105th, 107th, and

108th Congresses and passed a ban on partial-birth abortion

in the 104th, 105th, and 106th Congresses. These findings

reflect the very informed judgment of the Congress 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, and should,

therefore, be banned.

(14) Pursuant to the testimony received during extensive

legislative hearings during the 104th, 105th, 107th, and 108th

Congresses, Congress finds and declares that:

(A) Partial-birth abortion poses serious risks to the

health of a woman undergoing the procedure. Those risks

include, among other things: An increase in a woman’s risk

of suffering from cervical incompetence, a result of cervical

dilation making it difficult or impossible for a woman to

successfully carry a subsequent pregnancy to term; an

increased risk of uterine rupture, abruption, amniotic fluid

embolus, and trauma to the uterus as a result of converting

the child to a footling breech position, a procedure which,

according to a leading obstetrics textbook, “there are very

few, if any, indications for * * * other than for delivery of a

second twin”; and a risk of lacerations and secondary

hemorrhaging due to the doctor blindly forcing a sharp

instrument into the base of the unborn child’s skull while he

or she is lodged in the birth canal, an act which could result

in severe bleeding, brings with it the threat of shock, and

could ultimately result in maternal death.

(B) There is no credible medical evidence that partial-

birth abortions are safe or are safer taan other abortion

procedures. No controlled studies of partial-birth abortions

have been conducted nor have any comparative studies been

conducted to demonstrate its safety and efficacy compared

to other abortion methods. Furthermore, there have been

no articles published in peer-reviewed journals that establish

that partial-birth abortions are superior in any way to

established abortion procedures. Indeed, unlike other more

commonly used abortion procedures, there are currently no

medical schools that provide instruction on abortions that

include the instruction in partial-birth abortions in their

curriculum.

partial-birth abortion is “not an accepted medical practice”,

that it has “never been subject to even a minimal amount of

the normal medical practice development,” that “the relative

advantages and disadvantages of the procedure in specific

circumstances remain unknown,” and that “there is no

consensus among obstetricians about its use”. The

association has further noted that partial-birth abortion is

broadly disfavored by both medical experts and the public, is

“ethically wrong,” and “is never the only appropriate

procedure”.

(D) Neither the plaintiff in Stenberg v. Carhart, nor the

experts who testified on his behalf, have identified a single

circumstance during which a partial-birth abortion was

necessary to preserve the health of a woman.

(EF) The physician credited with developing the partial-

birth abortion procedure has testified that he has never

encountered a situation where a partial-birth abortion was

medically necessary to achieve the desired outcome and,

thus, is never medically necessary to preserve the health of a

woman.

(F) A ban on the partial-birth abortion procedure will

therefore advance the health interests of pregnant women

seeking to terminate a pregnancy.

(G) In light of this overwhelming evidence, Congress and

the States have a compelling interest in prohibiting partial-

birth abortions. In addition to promoting maternal health,

such a prohibition will draw a bright line that clearly

distinguishes abortion and infanticide, that preserves the

integrity of the medical profession, and promotes respect for

human life.

(H) Based upon Roe v. Wade, 410 U.S. 113 (1973) and

Planned Parenthood v. Casey, 505 U.S. 833 (1992), a

governmental interest in protecting the life of a child during

the delivery process arises by virtue of the fact that during a

partial-birth abortion, iabor is induced and the birth process

has begun. This distinction was recognized in Roe when the

Court noted, without comment, that the Texas parturition

statute, which prohibited one from killing a child “in a state

of being born and before actual birth,” was not under attack.

This interest becomes compelling as the child emerges from

the maternal body. A child that is completely born is a full,

legal person entitled to constitutional protections afforded a

“person” under the United States Constitution. Partial-

birth abortions involve the killing of a child that is in the

process, in fact mere inches away from, becoming a “person”.

Thus, the government has a heightened interest in

protecting the life of the partially-born child.

(I) This, too, has not gone unnoticed in the medical

community, where a prominent medical association has

recognized that partial-birth abortions are “ethically

different from other destructive abortion techniques because

the fetus, normally twenty weeks or longer in gestation, is

killed outside of the womb”. According to this medical

association, the “partial birth” gives the fetus an autonomy

which separates it from the right of the woman to choose

treatments for her own body”.

(J) Partial-birth abortion also confuses the medical,

legal, and ethical duties of physicians to preserve and

promote life, as the physician acts directly against the

physical life of a child, whom he or she had just delivered, all

but the head, out of the womb, in order to end that life.

Partial-birth abortion thus appropriates the terminology and

techniques used by obstetricians in the delivery of living

children—obstetricians who preserve and protect the life of

the mother and the child—and instead uses those techniques

to end the life of the partially-born child.

(K) Thus, by aborting a child in the manner that

purposefully seeks to kill the child after he or she has begun

the process of birth, partial-birth abortion undermines the

public’s perception of the appropriate role of a physician

during the delivery process, and perverts a process during

which life is brought into the world, in order to destroy a

partially-born child.

(L) The gruesome and inhumane nature of the partial-

birth abortion procedure and its disturbing similarity to the

killing of a newborn infant promotes a complete disregard

for infant human life that can only be countered by a

prohibition of the procedure.

(M) The vast majority of babies killed during partial-birth

abortions are alive until the end of the procedure. It is a

medical fact, however, that unborn infants at this stage can

feel pain when subjected to painful stimuli and that their

perception of this pain is even more intense than that of

newborn infants and older children when subjected to the

same stimuli. Thus, during a partial-birth abortion

procedure, the child will fully experience the pain associated

10a

with piercing his or her skull and sucking out his or her

brain.

(N) 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. Thus, Congress has a

compelling interest in acting—indeed it must act—to

prohibit this inhumane procedure.

(O) 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.

SEC. 3. PROHIBITION ON PARTIAL-BIRTH ABOR-

TIONS.

(a)IN GENERAL.—Title 18, United States Code, is

amended by inserting after chapter 73 the following:

“CHAPTER 74—PARTIAL-BIRTH ABORTIONS

“Sec.

“1531. Partial-birth abortions prohibited.

“$1531. Partial-birth abortions prohibited

“(a) Any physician who, in or affecting interstate or

foreign commerce, knowingly performs a_ partial-birth

abortion and thereby kills a human fetus shall be fined under

this title or imprisoned not more than 2 years, or both. This

subsection does not apply to a partial-birth abortion that is

necessary to save the life of a mother whose life is

lla

endangered by a physical disorder, physical illness, or

physical injury, including a life-endangering physical

condition caused by or arising from the pregnancy itself.

This subsection takes effect 1 day after the enactment.

“(b) As used in this section—

“(1) the term ‘partial-birth abortion’ means an abortion

in which the person performing the abortion—

‘(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 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 delivered living fetus; and

‘“(B) performs the overt act, other than completion of

delivery, that kills the partially delivered living fetus; and

‘(2) the term ‘physician’ means a doctor of medicine or

osteopathy legally authorized to practice medicine and

surgery by the State in which the doctor performs such

activity, or any other individual legally authorized by the

State to perform abortions: Provided, however, That any

individual who is not a physician or not otherwise legally

authorized by the State to perform abortions, but who

nevertheless directly performs a partial-birth abortion, shall

be subject to the provisions of this section.

“(c1) The father, if married to the mother at the time

she receives a partial-birth abortion procedure, and if the

mother has not attained the age of 18 years at the time of the

abortion, the maternal grandparents of the fetus, may in a

civil action obtain appropriate relief, unless the pregnancy

resulted from the plaintiffs criminal conduct or the plaintiff

consented to the abortion.

12a

*(2) Such relief shall include—

‘(A) money damages for all injuries, psychological and

physical, occasioned by the violation of this section; and

‘“(B) statutory damages equal to three times the cost of

the partial-birth abortion.

“(d)(1) A defendant accused of an offense under this

section may seek a hearing before the State Medical Board

on whether the physician’s conduct was necessary to save

the life of the mother whose life was endangered by a

physical disorder, physical illness, or physical injury,

including a life-endangering physical condition caused by or

arising from the pregnancy itself.

‘(2) The findings on that issue are admissible on that

issue at the trial of the defendant. Upon a motion of the

defendant, the court shall delay the beginning of the trial for

not more than 30 days to permit such a hearing to take place.

“e) A woman upon whom a partial-birth abortion is

performed may not be prosecuted under this section, for a

conspiracy to violate this section, or for an offense under

section 2, 3, or 4 of this title based on a violation of this

section.”.

(b) CLERICAL AMENDMENT.—The table of chap-

ters for part | of title 18, United States Code, is amended by

inserting after the item relating to chapter 73 the following

new item:

“74. Partial-birth abortions.....................::ccceeeeeeeees 1531”.

Approved November 5, 2008.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.