Amicus Curiae Brief — Gonzales v. Carhart

Supreme Court, U.S

AD FILED |

S/S MAY 2 2 2006 |

OFFICE OF THE CLERK |

No. 05-380

IN THE

Supreme Court of the Gnited MHtates

ALBERTO R. GONZALES,

ATTORNEY GENERAL,

Petitioner,

Vv.

LEROY CARHART, ET AL.,

Respondents.

~ On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

AMICUS BRIEF OF THE AMERICAN CENTER FOR

LAW AND JUSTICE, 78 MEMBERS OF CONGRESS,

AND THE COMMITTEE TO PROTECT THE

BAN ON PARTIAL BIRTH ABORTION

IN SUPPORT OF PETITIONER

JOHN P. TUSKEY JAY ALAN SEKULOW

LAURA B. HERNANDEZ Counsel of Record

SHANNON D. WOODRUFF STUART J. ROTH

ERIK M. ZIMMERMAN WALTER M. WEBER

AMERICAN CENTER FOR AMERICAN CENTER FOR

LAW & JUSTICE LAW & JUSTICE

1000 Regent University Dr. 201 Maryland Avenue, N.E.

Virginia Beach, VA 23464 Washington, DC 20002

(757) 226-2489 (202) 546-8890

Counsel for Amici Curiae

QUESTIONS PRESENTED

Did Congress properly ban the partial birth abortion of

a child, partly outside the mother’s body, to create a

legal bulwark between abortion and infanticide?

Did the court below err by categorically applying this

Court’s abortion jurisprudence, rather than the normal

rational basis test, to a ban on the killing of a child in the

birth process and partly outside the mo.her’s body?

Does Congress have the authority reasonably to take

sides on disputed medical questions, as in every other

area of the law, including ev2ry abortion case aside from

Stenberg v. Carhart?

Should this Court defer to the extensive fact-finding

undertaken by Congress prior to passage of the Partial

Birth Abortion Ban Act?

TABLE OF AUTHORITIES

INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

1.

Il.

III.

IV.

TABLE OF CONTENTS

THE PARTIAL BIRTH ABORTION BAN

ACT IS AN IMPORTANT BULWARK

AGAINST INFANTICIDE .............-...

LAWS THAT PROHIBIT THE KILLING OF

A CHILD IN THE BIRTH PROCESS AND

PARTLY OUTSIDE THE MOTHER'S BODY

SHOULD NOT BE SUBJECTED TO

ABORTION JURISPRUDENCE ...........

THERE SHOULD BE NO “STENBERG

EXCEPTION” TO THE RULE THAT

LEGISLATIVE BODIES MAY

RATIONALLY CHOOSE BETWEEN

COMPETING MEDICAL VIEWS..........

THIS COURT SHOULD DEFER TO

CONGRESS IN LIGHT OF THE

EXTENSIVE CONSIDERATION

CONGRESS GAVE TO THE PARTIAL

BIRTH ABORTION BAN ACT............

A. The 104th Congress (1995-1996) .....

B. The 105th Congress (1997-1998) .....

eee eee PB MRPREE RL Pee eg A

©. 6.8 .46.46246 89 666686 686606 82 2Oee eaeee@geoqrt rs ce

iii

i. The 106th Congress (1999-2000) ........ 22

D. The 107th Congress (2001-2002) ........ 23

E. The 108th Congress (2003-2004) ........ 23

EE, 546 6U iain ck ks oe eeeVeeves pices 26

iV

TABLE OF AUTHORITIES

Page

CASES

Akron v. Akron Center for Reproductive Health,

462 U.S. 416 CIGES) . wcrc cewcciccecesccvvesen 15

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) .... 13

Colautti v. Franklin, 439 U.S. 379 (1979) ........-0065 15

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam) ... 14

Doe v. Bolton, 410 U.S. 179 (1973) 2.2... cee eee eee 14

Domino's Pizza v. McDonald, 126 S. Ct. 1246 (2006) ..... 9

Harris v. McRae, 448 U.S. 297 (1980) .......-. 2.20 eee ]

Jacobsen v. Massachusetts, 197 U.S. 11 (1905) ......... 12

Jones v. United States, 463 U.S. 354 (1983) ............ 13

Kansas v. Hendricks, 521 U.S. 346 (1997) ..........4.. 13

Lambert v. Yellowley, 272 U.S. 581 (1926) ............ 13

Levy v. Louisiana, 391 U.S. 68 (1968) ............00040. 4

Maher v. Roe, 432 U.S. 464 (1977) 2.0... ccc ee eee 17

Marshall v. United States, 414 U.S. 417 (1974) ...... 11, 13

Mazourek v. Armstrong,, 520 U.S. 968 (1997)

SU CEIUEED. 0 6 c.0's'v'04 os vatebenid b406esebes bine 16

Nat'l Abortion Fed'n v. Ashcroft,

330 F. Supp. 2d 436 (S.D.N.Y. 2004) ....... 18, passim

Nat'l Abortion Fed'n v. Gonzales, 437 F.3d 278

Se ls SOD Gb. ie 65.00 Cwidie ba bccns Vere 4,10

Vv

Planned Parenthood of Central Mo. v. Danforth,

DP MENDON bc cc odcéewevecsrsccesicvcces 14, 15

Planned Parenthood v. Ashcroft, 462 U.S. 476

i Sek eked web ere wde seh otodvesees 10, 15

Planned Parenthood v. Casey, 505 U.S. 833

ae AR ONAL ge Cline ae Pe 7, 10, 15, 16

Roe v. Wade, 410 U.S. 113 (1973) ............. 3, passim

Schall v. Martin, 467 U.S. 253 (1984) 2.0... 0... c eee eeee 4

Simopoulos v. Virginia, 462 U.S. 506 (1983) ........... 15

Stenberg v. Carhart, 530 U.S. 914 (2000) ....... 1, passim

Thornburgh v. American College of Obstets.

& Gynecs., 476 U.S. 747 (1986)... 0. ee eee 15, 16

United States v. Lopez, 514 U.S. 549 (1995) ............ l

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

United States v. Oakland Cannabis Buyers’ Coop.,

ee koe eda sedeccne 12

United States v. Rutherford, 442 U.S. 544 (1979) ....... 12

United States v. Verdugo-Urquidez,

Tee ee oe ee ec eeeaee ees 3

United States v. Vuitch, 402 U.S. 62 (1971) ............. l

Washington v. Glucksberg, 521 U.S. 702 (1997) ........ 11

Webster v. Reproductive Health Services,

es ic aka eee dace seadeces 15, 16

Williamson v. Lee Optical, 348 U.S. 483 (1955) ........ 11

vi

STATUTES AND LEGISLATIVE MATERIALS

Partial-Birth Abortion Ban Act of 2003, 18 U.S.C.

§ 1531, P.L. 108-105, 117 Stat. 1201-06 ...... 1, passim

141 Cong. Rec. 17892-93 (Dec. 1995) ..........-5045- 20

141 Cong. Rec. H11597-11612 (Nov. 1, 1995) ......... 19

141 Cong. Rec. $18,196-97, 104th Cong., Ist Sess.

as PL we nv Anns handed pedgndbesccknsunsenve 8

149 Cong. Rec. H8992 (Sept. 30, 2003) ............4-. 24

149 Cong. Rec. H9142-9146 (Oct. 2, 2003) ............ 24

149 Cong. Rec. $13,127-29, 108th Cong., Ist Sess.

DA ED Subd CKCK os ted bh eimer SEN eee sOR KE 8

149 Cong. Rec. $3384-3386 (Mar. 10, 2003) ........... 24

149 Cong. Rec. $3457-3471 (Mar. 11, 2003) ........... 24

RY SF oda 6 deb Nes VaWdewdadeadiaseeasecees 23, 24

PPE 5 vv tidccnewecdcdacvencidadiasssneseenea 21

SEE 45000 duken b406denveeasndeedbeetebeenin 21

DME con cbcuddbhcopbecedeesaseneact conan 18-20

GME 6-540 0b00 chee bé0s dubetueeueceunetakenen 22

SEEN ae kdSvedd'ce nd cdnbduacenadekueeaes 23, 24

H.R. Doc. No. 104-198, 104" Cong., 2d Sess. (1996) .... 21

H.R. Doc. No. 105-158, 105" Cong., 1" Sess. (1997)... .. 22

Vil

Effects of Anesthesia During a Partial-Birth Abortion:

Hearing Before the House Comm. on the Judiciary,

Subcomm. on the Constitution, 104th Cong., 2d Sess.

SE. als PEE. Cun cdwekeseecededbeseshwsé 64000 20

Partial-Birth Abortion Ban Act of 1995, H.R. Rep. No.

104-267, 104" Cong., 1* Sess. 11 (1995) .......... 6, 18

Partial-Birth Abortion Ban Act of 1995: Hearing

on H.R. 1833 Before the Senate Comm. on the

Judiciary, 104" Cong., 1* Sess. (1995) .... 5, 6, 8, 19, 20

Partial-Birth Abortion Ban Act of 2002, H.R. Rep.

No. 107-604, 107" Cong., 2d Sess. (2002) ........ 22, 23

Partial-Birth Abortion Ban Act of 2002: Hearing

on H.R. 4965 before the Subcomm. on the Con-

stitution of the House Comm. on the Judiciary,

107" Cong., 2d Sess. (2002) ...........2-05. 5, 6, 8, 23

Partial-Birth Abortion Ban Act of 2003, H.R. Rep.

No. 108-58, 108" Cong., 1" Sess. (2003) ...... 8, passim

Partial-Birth Abortion Ban Act of 2003: Hearing

before the Subcomm. on the Constitution of the

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

SS ee eee 8, 24

Partial-Birth Abortion: Joint Hearing Before the

Senate Comm. on the Judiciary and the Subcomm.

on the Constitution of the House Comm. on the

Judiciary, 105" Cong., 1* Sess. (1997) ......... 6, 8, 21

Partial-Birth Abortion: Hearing Before the Subcomm.

on the Constitution of the House Comm. on the

Judiciary, 104th Cong., 1* Sess. (June 15, 1995) .... 8, 18

OTHER

Alan Guttmacher Institute, Induced Abortion in the

United States (May 18, 2005) (available at www.agi-

usa.org/pubs/fb_ induced abortion.html) ............. 4

Chang, Berg, Saltzman & Herndon, Homicide: A Leading

Cause of Injury Deaths Among Pregnant and

Postpartum Women in the United States, 1991-1999,

95 Am. J. Pub. Health 471 (2005) .................. 5

Francis Crick, 220 Nature 429-30 (1968) ............... 5

Finer & Henshaw, Estimates of U.S. Abortion Incidence

in 2001 and 2002, AGI (2005) .........0ce eee eeees 4

Martin Haskell, M.D., Dilation and Extraction for Late

Second Trimester Abortions, Presented at the National

Abortion Federation Risk Management Seminar (Sept.

SEE. Ka BUA CLEWSEC ESO cds REN ce teewes 19

Peter Singer, Writings on an Ethical Life (2000) ......... 5

Diane Sussman, Abandoned Babies: Legislators, Health

Officials Unite to Curb Recent Trend (Mar. 16, 2000)

(available at www. nurseweek.com/features/00-

NEE 4 6 ob bcd decuuabudectassraeesan 5

l

INTEREST OF AMICI’

The American Center for Law and Justice (“ACLJ”) is a

public interest law firm dedicated, inter alia, to the defense of

the sanctity of human life. The amici Members of the United

States Congress who were in office at the time supported

enactment of the federal Partial Birth Abortion Ban Act (PBA

Act). All of the amici Members support Congress’s proscription,

within the proper limits of Congress’s power,’ of the brutal

partial birth abortion procedure. (A list of the individual

Members is attached as an Addendum.) The Committee to

Protect the Ban on Partial Birth Abortion is a group of over

320,000 members of the ACLJ who have signed onto a petition

declaring that partial birth abortion is “an abomination that

should be outlawed in our country once and for all.”

SUMMARY OF ARGUMENT

The court below held that this Court’s decision in Stenberg v.

Carhart, 530 U.S. 914 (2000), controlled this case. That

conclusion was erroneous.

First, Stenberg did not consider a ban on slaying a child partly

' The parties in this case have consented to the filing of this brief. Copies of

the consent letters are being filed herewith. No counsel for any party

authored this brief in whole or in part. No person or entity aside from the

ACLJ, its members, or its counsel made a monetary contribution to the

preparation or submission of this brief.

? The federal government does not have a general criminal police power.

United States v. Morrison, 529 U.S. 598, 618-19 (2000); United States v.

Lopez, 514 U.S. 549, 564, 566-67 (1995). Congress can only limit abortion

in contexts where Congress has constitutional authority, e.g., the use of

federal funds (as in Harris v. McRae, 448 U.S. 297 (1980)), the governance

of federal territories (as in United States v. Vuitch, 402 U.S. 62 (1971)), and

the regulation of interstate commerce (as with the PBA Act). The PBA Act

contains an express link to interstate commerce. See 18 U.S.C. § 1531(a)

(“in or affecting interstate or foreign commerce”).

2

“outside the body of the mother,” 18 U.S.C. § 1531(b)(1)(A).

The federal partial birth abortion statute, which applies in

precisely such a situation, is a valid, indeed essential, barrier

against infanticide.

Second, Stenberg did not consider or decide whether this

Court's abortion jurisprudence should apply to the killing of a

child in the birth process and partly outside the mother’s body.

Regulation of such an act should not trigger this Court’s

heightened protection for “abortion.” Instead, the usual rational

basis test should apply.

Third, even if Stenberg could not be distinguished, it should

not be followed. Stenberg inexplicably departed from the well-

established rule, in both non-abortion and abortion cases, that the

legislature may take sides on contested medical questions

without awaiting unanimity in the medical profession. Whereas

the lower court invalidated the federal PBA Act solely because

of the existence of a divergence in medical opinion on the

relative safety of partial birth abortion versus dilation and

extraction (D&E) abortion, that judgment cannot stand.

Fourth and finally, Stenberg did not involve extensive

congressional findings. Given the correct standard of allowing

legislatures to make reasonable choices among competing

medical opinions, this Court should defer to the findings of

Congress and uphold the PBA Act.

ARGUMENT

The Eighth Circuit in this case struck down the federal PBA

Act as unconstitutional. The Court’s analysis began and ended

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

(2000). Pet. App. 7a-25a. The central question for this Court,

then, is whether Stenberg does -- or should -- dictate the

invalidity of the federal PBA Act. For the reasons set forth

below, Stenberg neither does nor should control this case.

3

The federal statute at issue here, unlike the Nebraska statute

in Stenberg, only applies to the partial birth abortion of a child

partly “outside the body of the mother,” 18 U.S.C.

§ 1531(b)(1)(A). Stenberg did not address or resolve the

question whether under Roe v. Wade, 410 U.S. 113 (1973), and

its progeny the partial birth abortion of a child partly outside the

mother's body is a valid, indeed essential, barrier against the

practice of infanticide. Nor did Stenberg address or decide the

question whether the abortion jurisprudence of Roe and its

progeny should even apply in the first place when the child is in

the birth process and partly outside the mother’s body.

Moreover, insofar as Stenberg crafted a novel rule -- namely,

that legislatures cannot act in the absence of a medical consensus

-- Stenberg deviates from the well-established rule in every other

area of the law, including abortion cases. Stenberg’s departure

from this established rule should not be followed.

Finally, Stenberg did not confront extensive congressional

findings in support of the challenged act. In light of the normal

rule of legislative flexibility in the face of divided medical

opinion, this Court should defer to the extensive findings of

Congress here.

I. THE PARTIAL BIRTH ABORTION BAN ACT IS AN

IMPORTANT BULWARK AGAINST INFANTICIDE.

Stenberg did not consider the validity of a law that applied,

like the federal PBA Act, only where the child is partly “outside

the body of the mother,” 18 U.S.C. § 1531(b)(1)(A). Hence,

Stenberg is not binding precedent on the constitutionality of such

a law. See United States v. Verdugo-Urquidez, 494 U.S. 259,

272 (1990) (prior decision that “did not expressly address the

proposition” is “not binding in future cases” where the claim is

“squarely before us”).

The federal PBA Act operates at the borderline between

4

prenatal and postnatal human life. Under Roe v. Wade, 410 U.S.

113 (1° this border separates human non-persons from

huma sons, and constitutional “rights” from legal wrongs.

Born human children indisputably enjoy the basic rights

secured to all “persons” under the Fourteenth Amendment. E.g.,

Levy v. Louisiana, 391 U.S. 68, 70 (1968). It therefore “cannot

be doubted” that there is a “legitimate and compelling state

interest” in protecting such children from harm, see Schall v.

Martin, 467 U.S. 253, 264 (1984) (internal quotation marks and

citation omitted). Hence, governments have a compelling interest

in preventing the spread of the practice of abortion into

infanticide. The PBA Act furthers precisely that interest. As one

judge recently phrased it, the PBA Act protects the unborn

child’s “emerging right to life” and furthers the “compelling

interest in protecting the line between abortion and infanticide,”

Nat'l Abortion Fed'n v. Gonzales, 437 F.3d 278, 312 (2d Cir.

2006) (Straub, J., dissenting).

The frequency of abortions throughout pregnancy,’ the

gruesome and barbaric methods used,* and the consequent

devaluing of human life in the eyes of society, as reflected in the

* According to the Alan Guttmacher Institute (AGI), which is the research

arm of Planned Parenthood, there were 1.29 million abortions in 2002. AGI,

Induced Abortion in the United States (May 18, 2005) (available at

www.agi-usa.org/pubs/fb_induced_abortion. html) (citing Finer & Henshaw,

Estimates of U.S. Abortion Incidence in 2001 and 2002, AGI (2005)).

Abortions are done throughout pregnancy. /d. (pie chart showing breakdown

by stage of pregnancy).

* See Stenberg v. Carhart, 530 U.S. 914, 923-28 (2000) (describing abortion

methods); id. at 946 (Stevens, J., concurring) (“gruesome procedures”’); id.

at 958-59 (Kennedy, J., dissenting) (in D&E procedure, “[t}he fetus, in many

cases, dies just as a human adult or child would: It bleeds to death as it is

torn limb from limb”; in D&X procedure, “the abortionist tears open the

skull’).

5

widespread phenomena of “dumpster babies” and violence

against pregnant women, all threaten to lead to the acceptance

of infanticide, especially in the first moments after birth.’ Partial

birth procedures represent the beachhead of this assault on

postnatal life, the bridge between abortion and infanticide.

Absent strong legal barriers and vigorous societal condemnation,

partial birth procedures open the way to legal infanticide.’ See

* See Diane Sussma:: Abandoned Babies: Legislators, Health Officials

Unite to Curb Recent Trend (Mar. 16, 2000) (available at www.

nurseweek.conv features/00-03/abandon.html) (13 dumpster babies reported

within 10 months in Houston; incidents reflective of national concern).

° Chang, Berg, Saltzman & Herndon, Homicide: A Leading Cause of Injury

Deaths Among Pregnant and Postpartum Women in the United States,

199]-1999, 95 Am. J. Pub. Health 471 (2005).

? Indeed, prominent academic voices already have sought to justify

infanticide. See Peter Singer, Writings on an Ethical Life (2000) pp. 160 (“If

the fetus does not have the same claim to life as a person, it appears that the

newborn baby does not either”), 161 (“the grounds for not killing persons

do not apply to newborn infants”); Francis Crick, 220 Nature 429-30 (1968).

* In fact, witnesses made that precise point at congressional hearings.

If partial birth abortions remain legal -- if Congress allows them to

continue -- what next? Killing a child who has emerged from the womb

three or four more inches or maybe killing them a few hours later after

the opportunity to examine whether or not they suffer from some

disability? All of these have already been suggested by scholarly writers

who support late term abortions. Opponents of this bill keep asking

whether it will be a first step in an effort to ban all abortions, but the real

question is whether allowing this procedure is not a step towards

legalized infanticide.

Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the

Senate Comm. on the Judiciary, 104th Cong., Ist Sess. 114-15 (1995)

{hereinafter Nov. 1995 Senate Hearing] (Statement of Helen Alvare of the

National Conference of Catholic Bishops); see generally id. at 112-19

(entire Alvare statement); see also, e.g., Partial-Birth Abortion Ban Act of

(continued...)

6

Stenberg, 530 U.S. at 961 (Kennedy, J., dissenting) (states have

an interest in “forbidding medical procedures which, in the

State’s reasonable determination, might cause the medical

profession or society as a whole to become insensitive, even

disdainful, to life, including life in the human fetus”).

Governments -- and all their people -- therefore have a

tremendously important stake in the unqualified prohibition of

partial birth infanticide. The child who “crosses the goal line” --

by foot or head -- into the realm “outside the body of the

* (...continued)

2002: Hearing on H.R. 4965 before the Subcomm. on the Constitution of

the House Comm. on the Judiciary, 107th Cong., 2d Sess. 27 (2002)

{hereinafter July 2002 House Hearing] (Statement of Dr. Curtis Cook)

(“blurring the line between abortion and infanticide”); id. at 13 (testimony

of Dr. Kathi A. Aultman).

Members of Congress voiced the same concern. See Fartial-Birth

Abortion: Joint Hearing Before the Senate Comm. on the Judiciary and the

Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th

Cong., Ist Sess. (1997) [hereinafter March 1997 Joint Hearing] (Statement

of Sen. Hatch) (“[{T]Jhe real issue is whether knowingly permitting this

procedure to continue would serve as a first step towards legalized

infanticide”); see also, e.g., Partial-Birth Abortion Ban Act of 1995, H.R.

Rep. No. 104-267, 104th Cong., Ist Sess. 11 (1995) (“The difference

between partial-birth abortion and infanticide is a mere three inches. The

‘Partial-Birth Abortion Ban Act’ would protect children from being killed

during the delivery process”); Nov. 1995 Senate Hearing (Statement of Sen.

Grassley) (“But the bottom line is really legal, stopping the head just short

of the birth is a legal fig leaf for a procedure that doesn’t look like abortion

at all, it looks like infanticide”); id. (Remark of Sen. Thompson) (“[I]t seems

to me that the question is whether or not a partial birth abortion should be

treated as infanticide”); July 2002 House Hearing 1 (Statement of Rep.

Chabot) (“Partial birth abortion is the termination of the life of a living baby

just seconds before it takes its first breath outside the womb. The procedure

is violent. It’s gruesome. It’s infanticide”); id. at 49 (Statement of Rep.

Forbes) (“The difference between partial birth abortion procedure and

infanticide is a mere 3-inches”).

7

mother,” 18 U.S.C. § 1531(b)(1)(A), must receive the full

protection of the law if we are not to abandon, inexorably, the

sanctity of postnatal life as well.

Critics of laws banning partial birth infanticide cynically

charge that the same prenatal child still faces death by other

techniques -- such as poisoning or dismemberment -- which

operate while the child remains entirely in the womb. Their

objection has undeniable force, but is legally irrelevant: “Those

who oppose abortion would agree, indeed would insist, that both

procedures are subject to the most severe moral condemnation,

condemnation reserved for the most repulsive human conduct.”

Stenberg, 530 U.S. at 963 (Kennedy, J., dissenting). See also

Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992) (“Some

of us as individuals find abortion offensive to our most basic

principles of morality”); id. at 852 (abortions are “procedures

some deem nothing short of an act of violence against innocent

human life”). But this is “not inconsistent . . . with the further

proposition that as an ethical and moral matter [partial birth

abortion] is distinct . . . and is a more serious concern for

medical ethics and the morality of the larger society . . .”

Stenberg, 530 U.S. at 963 (Kennedy, J., dissenting). The partial

birth procedure “perverts the natural birth process,” id. at 962-

63. Crucially, the federal PBA Act seeks to halt the extension of

gruesome abortion practices into gruesome infanticide. The child

who breaks the plane of the mother’s body “touches home

plate,” so to speak, and ought to be safe from destruction even

though equally deserving children regrettably may be slain just

inches away. This “bright line,”” while not as protective of

preborn life as justice might dictate, nevertheless represents an

* The federal statute at issue here draws a line which, while “bright,” is very

modest. Unless the baby’s “entire . . . head” or the “trunk past the navel” is

delivered “outside the body of the mother,” the statute does not apply. 18

U.S.C. § 1531(b)(1)(A).

8

essential barrier against the encroachment of abortion into

infanticide.

Critics find fault with the absence of a “health” exception in

the PBA Act. But partial birth laws are an expression of Western

Civilization’s longstanding prohibition of infanticide, and such

laws need not contain exceptions for children whose death

would improve the mother’s health. Invoking an adult’s “health”

as a reason for killing an innocent child should be unthinkable in

a civilized society. In any event, Congress reasonably found that

the partial birth procedure is never the only medically necessary

or available option. Partial-Birth Abortion Ban Act of 2003,

H.R. Rep. No. 108-58, 108th Cong., 1st Sess. 12, 14-19 & n.83

(2003)."° See also infra § III. A mandatory “health” exception,

moreover, improperly “awards each physician a veto power over

the State’s judgment that the procedures should not be

performed.” Stenberg, 530 U.S. at 964 (Kennedy, J., dissenting).

The central goal of the federal partial birth statute is the

defense of the border between abortion and infanticide. See

'° See also, e.g., Partial-Birth Abortion: Hearing Before the Subcomm. on

the Constitution of the House Comm. on the Judiciary, 104th Cong., !st

Sess. 38-44 (June 15, 1995) [hereinafter June 1995 House Hearing]

(testimony of Dr. Pamela Smith); Nov. 1995 Senate Hearing 75-83, 109-112

(testimony of Drs. Nancy Roemer and Pamela Smith); March 1997 Joint

Hearing 120-24 (testimony of Dr. Curtis R. Cook); July 2002 House

Hearing 12, 26-28 (testimony of Drs. Curtis R. Cook and Kathi A.

Aultman); Partial-Birth Abortion Ban Act of 2003: Hearing before the

Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th

Cong., Ist Sess. 6-10 (Mar. 25, 2003) [hereinafter March 2003 House

hearing] (testimony of Dr. Mark G. Neerhof); 149 Cong. Rec. $13,127-29,

108th Cong., Ist Sess. (Oct. 23, 2003) (Letters from Drs. Nathan Hoeldtke,

Susan E. Rutherford, T. Murphy Goodwin, Daniel J. Wechter, and Byron C.

Calhoun to Sen. Santorum submitted by Sen. Santorum); 141 Cong. Rec.

S18,196-97, 104th Cong., Ist Sess. (Dec. 7, 1995) (Letters from Drs.

Dorothy Czarnecki, L. Laurie Scott, Mary Davenport, Margaret Nordell, and

Karin E. Shinn to Senator Smith).

y

supra note 8. What matters most to this specific defense is the

protection of all children who, while still alive and therefore

capable of being protected, break the plane that currently marks

the dividing line between abortion and infanticide. The label the

abortionist uses for his lethal procedure is irrelevant. The reason

for using this macabre method of killing is irrelevant. What is

crucial is maintenance of the bulwark against infanticide, a

bulwark that would be pulverized by allowing “a procedure

many decent and civilized people find so abhorrent as to be

among the most serious of crimes against human life,” Stenberg,

530 U.S. at 979 (Kennedy, J., dissenting).

Il. LAWS THAT PROHIBIT THE KILLING OFA

CHILD IN THE BIRTH PROCESS AND PARTLY

OUTSIDE THE MOTHER’S BODY SHOULD NOT BE

SUBJECTED TO ABORTION JURISPRUDENCE.

In Stenberg, this Court reviewed Nebraska’s ban on partial

birth abortion under this Court’s current abortion jurisprudence.

530 U.S. at 921. This Court did not consider whether such

jurisprudence might be inapplicable, or applicable only with

modifications, where the child is in the birth process and partly

outside the mother’s body. Whereas the Stenberg Court did not

consider or pass upon that question, there is no binding

precedent on the matter. See Domino's Pizza v. McDonald, 126

S. Ct. 1246, 1251 (2006) (prior cases that “did not discuss, much

less decide,” an issue, do not control: “The Court often grants

certiorari to decide particular legal issues while assuming

without deciding the validity of antecedent propositions, and

such assumptions -- even on jurisdictional issues -- are not

binding in future cases that directly raise the questions’)

(internal quotation marks and citation omitted).

The instant case presents an especially compelling occasion

to confront the question whether a partial birth procedure should

10

be treated as “simply” an abortion, or as something different. As

a judge on the Second Circuit recently observed, the federal PBA

Act presents “a unique circumstance,” Nat’! Abortion Fed'n v.

Gonzales, 437 F.3d 278, 311 (2d Cir. 2006) (Straub, J.,

dissenting), namely, it applies only when the child is

substantially “outside the body of the mother,” id. (quoting 18

U.S.C. § 1531(b)(1)(A)) (emphasis added). In a partial birth

“abortion,” the child is being slain both in the birth process and

while partly outside the mother’s body.

There is no obvious reason why the killing of a child in these

unique circumstances should woodenly be categorized as an

“abortion” under Roe and Casey. To the contrary, there are very

good reasons for treating these barbaric acts as sui generis.

First, this procedure takes place literally at the borderline

between abortion and infanticide. By definition, partial birth

procedures are not “ordinary” abortions. And, as noted above,

supra § I, the government has a compelling interest in

maintaining a strong firewall at this border.

Second, this Court’s cases presuppose a distinction between

terminating a pregnancy and terminating a child being born. In

Roe, this Court expressly left tintouched the Texas ban on

destroying a child “during parturition.” 410 U.S. at 117 n.1. In

Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983), this

Court upheld the requirernent that a second physician be

available, during certain abortions, to care for any child born

alive. See id. at 485 (plurality) (“A second physician . . . may be

of assistance . . . in preserving the health and life of the child”).

And in Ashcroft this Court, with evident revulsion, described as

“remarkable” the testimony of an abortionist who asserted that

“*the abortion patient has a right not only to be rid of the growth,

called a fetus in her body, but also has a right to a dead fetus.’”

Id. at 483 n.7 (plurality) (quoting Dr. Robert Crist).

Third, that the mother is pregnant when the procedure starts

11

does not logically mean that the procedure is necessarily, in all

respects, an “abortion” regardless of what ensues. For example,

if a physician does a hysterotomy -- essentially a caesarian

delivery -- and the “aborted” baby emerges alive, it is not an

“abortion” for the physician to throttle the baby or drown the

child in a bucket of water. Nor would shoving the child back into

the womb, clamping the umbilical cord, and awaiting the child’s

death, be an “abortion.”

Here, of course, the child is not put back into the womb to be

slain but instead is deliberately extracted part of the way out, not

just from the womb, but from the mother’s body. This unique

circumstance amply warrants taking the PBA statute out of the

Court’s abortion jurisprudence.

Instead of applying Roe and its progeny, this Court should

apply standard rational basis scrutiny to this infanticide

prevention measure. E.g., Washington v. Glucksberg, 521 U.S.

702, 728 (1997) (asking whether ban on assisted suicide was

“rationally related to legitimate government interests”); see also

Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (“the day

is gone when this Court uses the Due Process Clause . . . to

strike down .. . laws . . . because they may be. . . out of

harmony with a particular school of thought”).

Ill. THERE SHOULD BE NO“STENBERG EXCEPTION”

TO THE RULE THAT LEGISLATIVE BODIES MAY

RATIONALLY CHOOSE BETWEEN COMPETING

MEDICAL VIEWS.

“When a legislature undertakes to act in areas fraught with

medical and scientific uncertainties, legislative options must be

especially broad . . .” Marshall v. United States, 414 U.S. 417,

427 (1974). The court below, in the name of following Stenberg,

ruled directly contrary to this well-established rule of deference

to the legislative resolution of medical controversies. Insofar as

12

Stenberg countenanced such a deviation from the settled rule,

Stenberg should not be followed.

Central to the Eighth Circuit’s decision to strike down the

federal PBA Act was its understanding of this Court’s decision

in Stenberg. The court below viewed Stenberg as holding that

whenever there was a “division of medical opinion” (Pet. App.

10a, quoting Stenberg, 530 U.S. at 937) on whether a certain

abortion procedure might hypothetically be of marginal relative

value to maternal health, it was unconstitutional to proscribe that

procedure. In effect, under this reading of Stenberg, the

legislature cannot conclude that a forbidden procedure is

medically unnecessary unless all credible medical authorities

agree. But in every area of the law, including abortion cases

aside from Stenberg, the rule is that medicine need not be

unanimous on a question before a legislature may act thereon.

Insofar as Stenberg purports to create a different, anomalous

rule, that decision should be repudiated. ''

There is, of course, no constitutional rule in any other area of

law that says that whenever physicians are in reasonable

disagreement, they may do whatever they see fit. To the

contrary, a host of federal and state laws rest on precisely the

opposite premise. The banning of certain controversial,

unapproved treatments, e.g., United States v. Rutherford, 442

U.S. 544 (1979) (Laetrile), the imposition of vaccines, Jacobsen

v. Massachusetts, 197 U.S. 11 (1905), the disallowance of

allegedly therapeutic uses of Schedule I controlled substances,

e.g., United States v. Oakland Cannabis Buyers’ Coop., 532

'' Stenberg can hardly be said to have created any reliance interests that

would weigh in favor of stare decisis on this question. No one orders his or

her life around the possibility of recourse to partial birth abortions.

Moreover, insofar as the Stenberg rule -- viz., in case of a medical dispute

no regulation is allowed -- disturbs the normal rule, it actually upsets

expectations and creates uncertainty as to the scope of this new rule.

13

U.S. 483 (2001), and the imposition of disclosure requirements

as part of informed consent, e.g., Canterbury v. Spence, 464 F.2d

772 (D.C. Cir. 1972), to list just a few familiar examples, all

limit medical practice despite the presence of credible dissenting

voices in the medical community. As this Court has explained,

the existence of a medical dispute or controversy is not a basis

for precluding legislative resolution; rather, “it is precisely

where such disagreement exists that legislatures have been

afforded the greatest latitude.” Kansas v. Hendricks, 521 U.S.

346, 360 n.3 (1997). “When a legislature undertakes to act in

areas fraught with medical and scientific uncertainties,

legislative options must be especially broad and courts should be

cautious not to rewrite legislation.” /d. at 370 (internal quotation

marks and citation omitted). Accord Jones v. United States, 463

U.S. 354, 364 n.13 (1983) (“The lesson we have drawn is not

that government may not act in the face of this uncertainty, but

rather that courts should pay particular deference to reasonable

legislative judgments”); Marshall v. United States, 414 U.S. 417,

427 (1974); Lambert v. Yellowley, 272 U.S. 581, 594-95 (1926)

(Congress struck balance in dispute over medical value of

alcohol).

There is no “privacy rights” exception to this rule of

deference. “For example, physicians are presumably prohibited

from using abortifacients that have not been approved by the

Food and Drug Administration even if some physicians

reasonably believe that these abortifacients would be safer for

women than existing abortifacients.” Stenberg, 530 U.S. at

1010-11 (Thomas, J., dissenting) (footnote omitted). Indeed, if

under the Stenberg rule it were unlawful to restrict abortion or

birth control whenever a given method were arguably necessary,

in a hypothetical case, for marginal health benefits, then

litigation over “medical consensus” would replace the FDA

approval process for abortifacients like RU-486 and birth control

14

drugs and devices like Norplant and the Dalkon Shield. Rather

than requiring tests and trials prior to approval, the government

would be relegated to proscribing or delaying the use of only

those measures that had no credible medical proponents.

Even in abortion context, however, this Court’s cases -- at

least aside from Stenberg -- foresaw and condoned legislation

reflecting the legislature’s adoption of particular medical

judgments. There has never been any suggestion in this Court’s

pre-Stenberg cases of an anomalous requirement that medical

opinion must be unanimous on a question before that opinion

can support legislation.

Thus, in Roe v. Wade, this Court expressly approved state

regulations (not just medical self-regulation) designed to further

maternal health. 410 U.S. at 149-50, 154, 162-63, 165. The Roe

Court also expressly approved the regulation of “the

qualifications of the person who is to perform the abortion.” the

“facility in which the procedure is to be performed,” “and the

like.” /d. at 163. There was no suggestion that such regulations

would be unconstitutional whenever there was a credible

argument that ignoring them might have marginal health benefits

for a particular hypothetical woman.

In Doe v. Bolton, 410 U.S. 179 (1973), the Court indicated

that licensing standards need only be “legitimately related to the

objective the state seeks to accomplish,” id. at 195.

In Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam),

this Court perceived no constitutional flaw in a ban on abortions

by nonphysicians. The Court explained that the “predicate” for

an abortion right in Roe “holds true only if the abortion is

performed by medically competent personnel under conditions

insuring maximum safety for the woman.” /d. at 11.

In Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52 (1976), the Court reaffirmed that the Constitution

required only that regulations be “reasonably related to maternal

15

health,” id. at 76 (quoting Roe, 410 U.S. at 164). See also id. at

80-81 (upholding recordkeeping and reporting requirements as

“reasonably directed to the preservation of maternal health”).'?

In Akron v. Akron Center for Reproductive Health, 462 U.S.

416 (1983), overruled in part by Casey, 505 U.S. at 870, 882,

the Court again reaffirmed the “reasonably related” test for

maternal health regulations, 462 U.S. at 430-31, 434. The Court

specifically noted that even in the first trimester, a safety

regulation that does “not interfere with . . . the woman’s choice

between abortion and childbirth” is “permissible where justified

by important state health objectives,” id. at 430. “A State

necessarily must have latitude in adopting regulations of general

applicability in this sensitive area.” /d. at 434. The “lines drawn”

need only “be reasonable” and need “not correspond perfectly in

all cases to the asserted state interest,” id. at 438. Cf Planned

Parenthood v. Ashcroft, 462 U.S. at 487 (plurality) (pathology

report requirement for all abortions upheld as “reasonably

related to generally accepted medical standards”); Simopoulos v.

Virginia, 462 U.S. 506, 519 (1983) (reaffirming state’s

“legitimate interest” in regulating “circumstances” of abortion to

assure “maximum safety” for patients); Thornburgh v. American

College of Obstets. & Gynecs., 476 U.S. 747, 766 (1986)

(acknowledging “reasonably directed . . . to maternal health”

standard), overruled in part on other grounds by Casey, 505

U.S. at 870, 882.

In Webster v. Reproductive Health Services, 492 U.S. 490

(1989), the plurality, reaffirming the “reasonably related to

In Colautti v. Franklin, 439 U.S. 379 (1979), this Court noted a

“disagreement among medical authorities about the relative merits and

safety of different abortion procedures,” id. at 399. However, the Court did

“not address” the constitutionality of a legislative judgment in this area, id.

at 400, because the Court found the relevant provision impermissibly vague,

id. at 400-01.

16

maternal health” standard, id. at 516, endorsed the view that this

standard should apply not just after the first trimester but rather

throughout pregnancy, id. at 519 (citing dissenting view of

Justice O’Connor in Thornburgh).

In Casey, a majority of this Court accepted the proposition,

from the Webster plurality, that “the State has legitimate interests

from the outset of pregnancy in protecting the health of the

woman and the life of the fetus,” Casey, 505 U.S. at 845. See

also id. at 900 (joint opinion). In particular, “/aj/s with any

medical procedure, the state may enact regulations to further the

health or safety of a woman seeking an abortion,” id. at 878

(joint opinion) (emphasis added). Only “(u]nnecessary health

regulations . . . presenting a substantial obstacle to a woman

seeking abortion,” run afoul of this standard. /d.

Thus, while diverging somewhat on the particulars, this

Court’s pre-Stenberg abortion cases uniformly adhered to a

reasonableness test in assessing the connection between a

regulation of abortion and the underlying goal of maternal

health. There was no hint that the mere existence of credible

medical counter-argument would suffice to invalidate the

regulation. Indeed, in Mazourek v. Armstrong, 520 U.S. 968

(1997) (per curiam), this Court rejected a constitutional

challenge that alleged that “a// health evidence contradicts the

{state’s asserted] health basis for the law,” id. at 973 (editing

marks omitted; emphasis added), declaring this argument to be

“squarely foreclosed by Casey itself,” which held that states

possess “broad latitude” in this area “even if an objective

assessment” might suggest a contrary policy. 520 U.S. at 973

(editing marks and emphasis omitted).

Despite this consistent theme of deference to legislative

judgment in contested medical matters, both in the abortion

context and more generally, the Stenberg Court struck down a

law because “significant medical authority” took a contrary

17

position regarding the law’s potential impact on maternal health.

Stenberg, 520 U.S. at 932. See also id. at 936 (legislation must

fall in the face of a federal trial court’s contrary finding on

maternal risk, “a highly plausible record-based explanation” of

that risk, “a division of opinion among some medical experts,”

and “an absence of controlled medical studies”). Stenberg thus

represents a clear departure from settled constitutional law, a

departure that calls into question the status of the vast array of

medical laws and regulations.

This Court should therefore modify or repudiate Stenberg

insofar as it disallows a legislative body from making reasonable

judgments regarding contested medical questions. Uncertainty

among experts is a reason for legislative latitude, not legislative

paralysis. The “Constitution does not require a judicially

imposed resolution of these difficult issues.” Maher v. Roe, 432

U.S. 464, 480 (1977).

IV. THIS COURT SHOULD DEFER TO CONGRESS IN

LIGHT OF THE EXTENSIVE CONSIDERATION

CONGRESS GAVE TO THE PARTIAL BIRTH

ABORTION BAN ACT.

Once the proper constitutional standard is applied -- deference

to reasonable legislative choices among competing medical

opinions -- it is clear that the federal PBA Act represents a

permissible legislative course of action.

Congress devoted substantial time and effort to weighing the

arguments for and against the challenged PBA Act, before

reaching a considered bipartisan judgment that partial birth

abortion should be prohibited. That judgment merits deference

by this Court.

The Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. §

1531, P.L. 108-105, 117 Stat. 1201-06, signed by President Bush

on November 5, 2003, became law only after more than eight

18

years of congressional deliberation and analysis. Four different

Congresses conducted six hearings on such legislation and heard

from dozens of doctors, nurses, medical associations, professors,

Members of Congress and private citizens. After reviewing all

the evidence before it, Congress concluded that the Act

promoted salutary goals and that “partial-birth abortion is never

necessary to preserve the health of a woman and should,

therefore, be banned.”'’ The federal judiciary should defer to

these factual determinations. This Court should uphold the

federal PBA Act.

A. The 104th Congress (1995-1996)

Congress first considered a partial birth abortion ban in 1995.

Representative Charles Canady introduced H.R. 1833, the

Partial-Birth Abortion Ban Act of 1995, on June 14, 1995."* The

first of three hearings on this bill took place in the House on

June 15, 1995.'° Dr. Pamela Smith, Dr. Robert J. White, and a

neonatal nurse named Mary Ellen Morton testified in favor of

the ban at the hearing while Dr. J. Courtland Robinson and

Tammy Watts, a woman who had undergone an abortion,

testified against it.'° The House also heard Professor David M.

Smolin discuss the ban’s constitutionality, and the record

contains additional statements and research papers from doctors,

' Partial-Birth Abortion Ban Act of 2003, H.R. Rep. No. 108-58, at 12

(Apr. 3, 2003).

'* H.R. Rep. No. 108-58, at 12.

'S Nat'l Abortion Fed'n v. Ashcroft, 330 F. Supp. 2d 436, 443 (S.D.N-Y.

2004); June 1995 House Hearing; H.R. Rep. No. 104-267, 104th Cong., Ist

Sess. (1995).

'® Nat'l Abortion Fed'n, 330 F. Supp. 2d at 443 (citing June 1995 House

Hearing).

19

advocacy groups, and a Member of Congress.'’ The record

included Dr. Martin Haskell’s 1992 paper, Dilation and

Extraction for Late Second Trimester Abortion, the very paper

that, according to Congress, “sparked a national debate over the

partial-birth abortion procedure.”'* Additional statements about

the ban by physicians such as Mitchell Creinin, Lewis H. Koplik,

and Bruce Ferguson were introduced into the record during the

November 1, 1995 House debates. '? The House approved the bill

by a bipartisan vote of 288-139.”

The Senate Judiciary Committee held the second hearing on

H.R. 1833 on November 17, 1995.' Five physicians testified:

Drs. Pamela Smith and J. Courtland Robinson reiterated the

testimony they had given before the House committee, while

Drs. Norig Ellison, Nancy Romer, and Mary Campbell also

testified about the ban.” The committee also heard testimony

from Brenda Pratt Schaefer (a registered nurse), Helen Alvare

from the National Conference of Catholic Bishops, two law

professors, and three women who had complications during the

later stages of their pregnancies.” The numerous contributors to

the hearing record included Dr. Warren M. Hern, women who

'’ Id. at 443-44 (citing June 1995 House Hearing).

'S H.R. Rep. No. 108-58, at 2 (citing Martin Haskell, M.D., Dilation and

Extraction for Late Second Trimester Abortions, Presented at the National

Abortion Federation Risk Management Seminar (Sept. 13, 1992)); Nat’/

Abortion Fed'n, 330 F. Supp. 2d at 443-44.

'° Nat'l Abortion Fed n, 330 F. Supp. 2d at 444; see also 141 Cong. Rec.

H11597-11612 (Nov. 1, 1995).

° H.R. Rep. No. 108-58, at 13.

*" HLR. Rep. No. 108-58, at 13 (citing Nov. 1995 Senate Hearing).

#2 Nat'l Abortion Fed n, 330 F. Supp. 2d at 444 (citing Nov. 1995 Senate

Hearing).

* Id. (citing Nov. 1995 Senate Hearing).

20

had undergone an abortion, a Senator, lawyers testifying about

the bill’s implications and constitutionality, the National

Abortion Federation, the American College of Obstetricians and

Gynecologists, the American Nurses Association, and Planned

Parenthood Federation of America.* During the Senate floor

debate over H.R. 1833 from December 5-7, 1995, a letter from

Dr. Antonio Scommegna was added to the record.”* The Senate

approved the bill, in amended form, by a bipartisan 54-44 vote

on December 7, 1995.”°

The final hearing on H.R. 1833, entitled Effects of Anesthesia

During a Partial-Birth Abortion, was held on March 21, 1996 by

the House Subcommittee on the Constitution.”’ Several

physicians -- Drs. Norig Ellison (who testified before the Senate

earlier), David Birnbach, David Chestnut, and Jean Wright -- all

said that administering an anesthetic to the mother does not

alleviate fetal pain during a partial birth abortion.” Previous

Senate witnesses Brenda Pratt Shafer, Helen M. Alvare, and

Coreen Costello reiterated their previous remarks at the

hearing.”” Also, Mary-Dorothy Line opposed the ban due to her

past experience having undergone a partial birth abortion.”

On March 27, 1996, the House approved a slightly amended

** Id. (citing Nov. 1995 Senate Hearing).

*® Id. (citing 141 Cong. Rec. 17892-93 (Dec. 4, 1995)).

© H.R. Rep. No. 108-58, at 13 & n.67.

” Id. (citing Effects of Anesthesia During a Partial-Birth Abortion: Hearing

Before the House Comm. on the Judiciary, Subcomm. on the Constitution,

104th Cong., 2d Sess. (Mar. 21, 1996) [hereinafter Mar. 1996 House

Hearing}).

** Nat'l Abortion Fed'n, 330 F. Supp. 2d at 444 (citing Mar. 1996 House

Hearing).

*® Id. (citing Mar. 1996 House Hearing).

*° Id. (citing Mar. 1996 House Hearing).

21

version of the ban by a 286-129 vote,*’ but President Clinton

vetoed the bill.*? While the House overrode the veto by a vote of

285-137 on September 19, 1996, the Senate’s vote of 58 to 40 in

favor of override fell short of the necessary two-thirds.”

B. The 105th Congress (1997-1998)

Rep. Charles Canady introduced a partial birth abortion ban,

H.R. 929, on March 5, 1997.°%* On March 11, the Senate

Committee on the Judiciary and the House Subcommittee on the

Constitution held a joint hearing on the bill.*° The hearing and its

record included statements from Dr. Curtis Cook and other

physicians, a Centers for Disease Control official, women who

had undergone partial birth abortions, Members of Congress,

constitutional law scholars, representatives of the abortion

industry, and pro-life and pro-abortion advocacy groups such as

Planned Parenthood and the National Right to Life Committee.*°

On March 20, 1997, the House debated a bill very similar to

H.R. 929 (H.R. 1122, the Partial-Birth Abortion Ban Act of

1997) and approved it 295 to 136.°” The Senate examined H.R.

1122 on May 15 and 20, 1997, and approved it 64-36."

* LR. Rep. No. 108-58, at 13.

*? Id.; see also H.R. Doc. No. 104-198, 104th Cong., 2d Sess. (1996) (the

President’s veto statement).

3 LR. Rep. No. 108-58, at 13.

4 Id.

* Id.; Mar. 1997 Joint Hearing.

*° H.R. Rep. No. i68-58, at 13; Nat'l Abortion Fed'n, 330 F. Supp. 2d at

445-46 (citing Mar. 1997 Joint Hearing).

” HR. Rep. No. 108-58, at 13.

* Id.

22

President Clinton again vetoed the bill.*” The House voted to

override the veto by a vote of 296 to 132 on July 23, 1998; the

Senate’s vote of 64-36 on September 18, 1998, fell just short of

the two-thirds required for override.”

Cc. The 106th Congress (1999-2000)

During the 106th Congress, both Chambers approved versions

of a ban but neither conducted additional hearings. Rep. Canady

introduced H.R. 3660, a bill identical to the one approved by the

House in the 105th Congress.*' H.R. 3660 was eventually

approved 287-141 by the House.** On October 5, 1999, Senator

Rick Santorum introduced a bill in the Senate (S. 1692) banning

partial birth abortion which differed from H.R. 3660 in some

respects.*’ S. 1692 was considered by the Senate on October 19-

21, 1999, and approved 63-34 on October 21.“ When the House

considered S. 1692, it amended the bill by inserting the text of

H.R. 3660 and approved it on May 25, 2000.*° Congress took no

further action on the bill after the Stenberg decision was issued

in June 2000“ in order to study the decision and ensure that any

future partial birth legislation would be consistent with it.*’

*° Id.; see also H.R. Doc. No. 105-158, 105th Cong., Ist Sess. (1997) (the

President's veto statement).

“ H.R. Rep. No. 108-58, at 13.

"Id.

” Id.

* Id.

“ Id.

Id.

“ Id. at 13 0.68.

” See, e.g., id. at 6, 63; Partial-Birth Abortion Ban Act of 2002, H.R. Rep.

(continued...)

23

D. The 107th Congress (2001-2002)

Rep. Steve Chabot introduced H.R. 4965 on June 19, 2002,

the first partial birth abortion bill after Stenberg.“* On July 9,

2002, the House Subcommittee on the Constitution held a

hearing on the bill.*? The four witnesses testifying at the hearing

were Dr. Kathi Aultman, Dr. Curtis Cook, Professor Robert A.

Destro, and Simon Heller of the Center for Reproductive Law

and Policy (who represented the plaintiff in Stenberg).”

Representatives Steve Chabot and Randy Forbes also submitted

material to the subcommittee,*' and the record included medical

papers, letters from physicians, and statements from the

American Medical Association (AMA), the American College

of Obstetricians (ACOG), and the Physicians’ Ad Hoc Coalition

for Truth (PHACT).” While the House approved H.R. 4965 on

July 24, 2002, by a 274-151 vote, the Senate failed to take action

on the bill.”

E. The 108th Congress (2003-2004)

A federal partial birth abortion ban was finally enacted during

the 108th Congress. Rep. Steve Chabot introduced H.R. 760 --

*’ (...continued)

No. 107-604, 107th Cong., 2d Sess. (2002); July 2002 House Hearing 2

(Statement of Rep. Chabot).

“HR. Rep. No. 108-58, at 14.

*” Id.; July 2002 House Hearing.

* HLR. Rep. No. 108-58, at 14.

*" HR. Rep. No. 107-604, at 22.

* Nat'l Abortion Fed'n, 330 F. Supp. 2d at 447-48 (citing July 2002 House

Hearing).

* H.R. Rep. No. 108-58, at 14.

24

identical to H.R. 4965 -- on February 13, 2003.°* Senator Rick

Santorum introduced a parallel bill (S. 3) the following day.”

The Senate reviewed S. 3 on March 10-13, 2003, and approved

an amended version of it by a 64-33 vote. The record of the

Senate debate includes statements from Drs. Natalie Roche,

Gerson Weiss, and Curtis Cook as well as women who had

undergone abortions.*”

The House Subcommittee on the Constitution held a hearing

on H.R. 760 on March 25, 2003.** Those testifying were Dr.

Mark G. Neerhof, Simon Heller (for the second time), and

Professor Gerard V. Bradley.” Those whose statements were

offered into the record included Drs. Philip D. Darney, Daniel J.

Wechter, Watson Bowes, Steve Calvin, Nathan Hoeldtke, Byron

C. Calhoun, T. Murphy Goodwin, and Susan E. Rutherford as

well as Physicians for Reproductive Choice and Health (PRCH),

the American Medical Women’s Association(AMWA), ACOG,

and PHACT.® The House passed H.R. 760 by a 282-139 vote on

June 4, 2003.°' The House approved the conference report for S.

3 by a 281-142 vote on October 2, 2003,” while the Senate did

* Id.

8 Id.

© Id.

*” See 149 Cong. Rec. $3384-3386 (Mar. 10, 2003); 149 Cong. Rec. S3457-

3471 (Mar. 11, 2003).

* HLR. Rep. No. 108-58, at 14; March 2003 House Hearing.

® H.R. Rep. No. 108-58, at 14.

® Nat'l Abortion Fed'n, 330 F. Supp. 2d at 448-49 (citing March 2003

House Hearing).

°' Id at 449.

* Id.; see also 149 Cong. Rec. H8 “92 (Sept. 30, 2003); 149 Cong. Rec.

(continued...)

25

so by a 64-34 vote on October 21, 2003.” President Bush signed

the Partial-Birth Abortion Ban Act of 2003 into law on

November 5, 2003.

* eo *

In sum, Congress extensively considered the PBA Act over

several years, both before and after the Court’s Stenberg

decision. Congress heard testimony by, and _ received

submissions from, physicians, lawyers, organized groups, private

individuals, and the like -- all different types of parties, and both

proponents and opponents of this law -- about the importance of

restricting this procedure, any claimed medical need for the

procedure, the effects of the Act, and the Act’s constitutionality.

Congress's judgment that the procedure as defined in the PBA

Act should be prohibited in order to reflect American society’s

horror at infanticide is entitled to considerable respect and

deference. The Eighth Circuit’s invalidation of that considered

judgment was erroneous and should be reversed.

* (continued)

H9142-9146 (Oct. 2, 2003).

** Nat'l Abortion Fed'n, 330 F. Supp. 2d at 449.

“18 U.S.C. § 1531, P.L. 108-105, § 3(a), 117 Stat. 1201-06.

26

CONCLUSION

This Court should reverse the judgment of the Eighth Circuit.

Respectfully submitted,

John P. Tuskey Jay Alan Sekulow

Laura B. Hernandez Counsel of Record

Shannon D. Woodruff Stuart J. Roth

Erik M. Zimmerman Walter M. Weber

American Center for Law & American Center for Law &

Justice Justice

1000 Regent University Dr. 201 Maryland Avenue, N.E.

Virginia Beach, VA 23464 Washington, DC 20002

(757) 226-2489 (202) 546-8890

Counsel for Amici Curiae

May 22, 2006

ADDENDUM

la

Addendum: List of Individual Amici

Sen. Jim DeMint (South Carolina)

Sen. Rick Santorum (Pennsylvania)

Rep. Robert B. Aderholt (Alabama — 4" District)

Rep. W. Todd Akin (Missouri — 2™ District)

Rep. J. Gresham Barrett (South Carolina — 3" District)

Rep. Roscoe G. Bartlett (Maryland — 6" District)

Rep. Rob Bishop (Utah — 1* District)

Rep. Marsha Blackburn (Tennessee — 7” District)

Rep. Kevin Brady (Texas — 8" District)

Rep. Michael C. Burgess (Texas — 26" District)

Rep. Dan Burton (Indiana — 5* District)

Rep. Chris Cannon (Utah — 3 District)

Rep. John Carter (Texas -- 31" District)

Rep. Steve Chabot (Ohio — 1* District)

Rep. Tom Cole (Oklahoma — 4" District)

Rep. Barbara Cubin (Wyoming — At Large)

Rep. Jo Ann Davis (Virginia — 1* District)

Rep. John T. Doolittle (California — 4” District)

Rep. Tom Feeney (Florida — 24" District)

Rep. Jeff Flake (Arizona — 6" District)

Resident Commissioner Luis G. Fortufio (Puerto Rico)

Rep. Virginia Foxx (North Carolina — 5® District)

Rep. Trent Franks (Arizona — 2” District)

Rep. Scott Garrett (New Jersey — 5" District)

Rep. Phil Gingrey (Georgia — 11" District)

Rep. Virgil H. Goode, Jr. (Virginia — 5 District)

Rep. Mark Green (Wisconsin — 8" District)

Rep. Gil Gutknecht (Minnesota — |* District)

Rep. Ralph M. Hall (Texas — 4” District)

Rep. Melissa A. Hart (Pennsylvania — 4" District)

Rep. Robin Hayes (North Carolina — 8" District)

Rep. J.D. Hayworth (Arizona — 5" District)

Rep. Wally Herger (California — 2" District)

Rep. Peter Hoekstra (Michigan — 2™ District)

2a

Rep. John N. Hostettler (Indiana — 8" District)

Rep. Duncan Hunter (California - 52" District)

Rep. Bob Inglis (South Carolina - 4" District)

Rep. Ernest J. Istook, Jr. (Oklahoma — 5" District)

Rep. Bobby Jindal (Louisiana — 1* District)

Rep. Sam Johnson (Texas — 3” District)

Rep. Walter B. Jones (North Carolina — 3™ District)

Rep. Steve King (Iowa — 5" District)

Rep. John Kline (Minnesota — 2™ District)

Rep. Ron Lewis (Kentucky — 2 District)

Rep. Donald A. Manzullo (Illinois — 16" District)

Rep. Michael McCaul (Texas — 10" District)

Rep. Patrick T. McHenry (North Carolina — 10” District)

Rep. Mike McIntyre (North Carolina - 7" District)

Rep. Jeff Miller (Florida — 1“ District)

Rep. Tim Murphy (Pennsylvania — 18" District)

Rep. Sue Wilkins Myrick (North Carolina — 9" District)

Rep. Randy Neugebauer (Texas — 19” District)

Rep. Charlie Norwood (Georgia — 9" District)

Rep. Stevan Pearce (New Mexico — 2™ District)

Rep. Mike Pence (Indiana — 6" District)

Rep. Charles W. “Chip” Pickering (Mississippi — 3" District)

Rep. Joseph R. Pitts (Pennsylvania — 16" District)

Rep. Ted Poe (Texas — 2™ District)

Rep. Rick Renzi (Arizona — 1" District)

Rep. Dana Rohrabacher (California — 46" District)

Rep. Paul Ryan (Wis¢onsin — 1" District)

Rep. Jim Ryun (Kansas — 2” District)

Rep. Jean Schmidt (Ohio — 2™ District)

Rep. F. James Sensenbrenner, Jr. (Wisconsin — 5" District)

Rep. Pete Sessions (Texas — 32™ District)

Rep. John B. Shadegg (Arizona — 3” District)

Rep. Christopher H. Smith (New Jersey — 4" District)

Rep. Lamar Smith (Texas — 21* District)

Rep. Michael E. Sodrel (Indiana — 9" District)

Rep. Mark E. Souder (Indiana — 3 District)

3a

Rep. John Sullivan (Oklahoma — 1* District)

Rep. Thomas G. Tancredo (Colorado — 6" District)

Rep. Charles Taylor (North Carolina — 11" District)

Rep. Lee Terry (Nebraska — 2™ District)

Rep. Todd Tiahrt (Kansas — 4" District)

Rep. Zach Wamp (Tennessee — 3” District)

Rep. Lynn A. Westmoreland (Georgia — 8" District)

Rep. Roger F. Wicker (Mississippi - 1* District)