# Petitioners Brief — Gonzales v. Carhart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 124

## Text

In the Supreme Court of the Bnited States

ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER

v.
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)

IV

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

Vv

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

VI

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
v.
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.

3

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-

4

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-

5

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.

6

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

vr
‘

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

8

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

9

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

10

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

11

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,

12

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.

13

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

14

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.

15

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

16

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.

17

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

18

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,

20

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.

21

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

22

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).

23

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,
* © * courts should be cautious not to rewrite legislation, even assuming,
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).

24

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

25

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

26

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.

27

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”).

28

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.

29

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

30

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”).

31

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

32

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.

33

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,

34

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.

35

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

36

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

37

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,

38

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.

39

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

40

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).

41

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-

42

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

le

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.

43

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”).

4

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

45

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

46

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.

47

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

48

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.

49

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

50

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)

Za

(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

Sa

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

4a

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)

da

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-

Ga

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 su

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0219%3A16. Public record. Not legal advice.