Ethics & Public Policy Center

The Mystery of the Missing Lawsuits

Published in National Review Online on April 18, 2008



Something remarkable has happened over the past year: nothing.

Exactly one year ago today, the Supreme Court in Gonzales v. Carhart rejected a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003. Confronting “documented medical disagreement whether the Act's prohibition [on partial-birth abortion] would ever impose significant health risks on women,” the five-justice majority ruled that such disagreement about health risks in particular circumstances did not warrant invalidating the act in its entirety. Instead, the Court virtually invited practitioners of partial-birth abortion and their allies to bring so-called as-applied challenges that would carve out from the Act's scope any circumstances in which partial-birth abortion might be shown to be necessary to preserve the mother's health. (See my essay “The Face-Off Over Partial-Birth Abortion” for a fuller discussion of the distinction between facial and as-applied challenges.)

In dissent, Justice Ginsburg predicted that these as-applied challenges would “be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the [Act's] prohibition.” According to Ginsburg, “the record already includes hundreds and hundreds of pages of testimony identifying ‘discrete and well-defined instances' in which recourse to an intact D&E [i.e., partial-birth abortion] would better protect the health of women with particular conditions.”

So how many as-applied challenges have been filed over the past year? Zero.

This fact is worth pondering, not only because the abortion industry had already compiled its best evidence of alleged health risks but also because it has long demonstrated its zeal to race to court on a moment's notice. Why hasn't it brought any as-applied challenges?

In a debate with me ten months ago, the Planned Parenthood attorney who presented oral argument in Gonzales v. Carhart offered successive makeshift explanations for the surprising inaction as of then. First, she contended that the as-applied challenges contemplated by the Court required that “a woman who has a serious medical need for an intact D&E abortion … just wait until the exact moment of that need, when she may in fact be hemorrhaging, [when] she may be hospitalized due to a systemic infection … [and] then file a lawsuit in federal court and wait for relief.”

Nice sound bite, perhaps, but manifestly untrue. As I pointed out, the proper plaintiff in as-applied actions is the abortionist, not the mother, as the penalties under the Act apply to him, not her. It's quite clear from the Court's ruling (and Ginsburg assumes as much in her dissent) that an abortionist who reasonably expects to face circumstances in his practice that he thinks call for partial-birth abortion to preserve the mother's health can challenge the Act's application to those circumstances. Indeed, the Court notes that even the Department of Justice “has acknowledged that preenforcement, as-applied challenges to the Act can be maintained.” And even if it weren't clear, that wouldn't typically stop the pro-abortion litigation juggernaut from striving to establish the point.

The Planned Parenthood attorney then shifted to another explanation, as she asserted that the two injunctions that had been put in place “in the cases that went to the Supreme Court . . . have not yet been lifted by the lower court.” But that explanation made no sense either. By reversing the rulings below, the Supreme Court swept away the injunctions; no mopping-up by the lower courts was necessary.

So, given the supposed need to “ward off serious, sometimes irremediable harm” to pregnant women, why haven't Planned Parenthood and its allies pursued any as-applied challenges over the course of the past year?

One hint to the answer may be provided by the abortion industry's previous record of remarkable misstatements about partial-birth abortion. To cite two leading examples:

 In 1995, as the barbaric facts of partial-birth abortion were first coming to light, Planned Parenthood and other pro-abortion groups claimed that anesthesia given to the mother caused painless death of the baby before the partial-birth abortion was done — before, that is, the abortionist extracted the baby by her feet until all but her head had emerged, stabbed scissors into her head, sucked out her brains, collapsed her skull, and delivered her dead body. A Planned Parenthood abortionist even made that claim to the Senate Judiciary Committee. But two major societies of anesthesiologists firmly repudiated it.

 Planned Parenthood and its allies also claimed in the mid-1990s that partial-birth abortion was “rare and performed primarily to save the lives or fertility of women bearing severely malformed babies” (in the New York Times's paraphrase of a typical claim). But in 1997 the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in parroting that claim. In truth, “the procedure was common,” and “[i]n the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along.” In Fitzsimmons's words, “The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.” Yet as late as 2003, Planned Parenthood was still claiming that partial-birth abortion was “used primarily in emergency abortions.” (And, even after the Court's 2007 ruling, the lie lives on: for example, Supreme Court reporter Jeffrey Toobin repeated the falsehood both in a New Yorker article and in his book The Nine.)

Let me offer my own best guess why the abortion industry has brought no as-applied challenges over the past year: It realizes that it has no prospect of winning because its vaunted medical evidence is, and always has been, very feeble.

That was clearly the assessment of the judge who most carefully examined the evidence, federal district judge (and Clinton appointee) Richard Conway Casey. In his lengthy 2004 ruling in National Abortion Federation v. Ashcroft, Judge Casey concluded that the government's expert witnesses “reasonably and effectively refuted Plaintiffs' proffered bases for the opinion that [partial-birth abortion] has safety advantages over other second-trimester abortion procedures.” Casey stated that the government's experts had demonstrated that some of the proffered reasons were “incoherent” and not “credible” and that others were “merely theoretical.” Providing examples of several meritless claims, Casey categorically stated: “In no case involving these or other maternal health conditions could Plaintiffs point to a specific patient or actual circumstance in which [partial-birth abortion] w
as necessary to protect a woman's health.” (Emphasis added.)

Judge Casey, however, read the Supreme Court's 2000 ruling in Stenberg v. Carhart — which invalidated a state ban on partial-birth abortion — as barring a ban on partial-birth abortion unless “there exists a medical consensus that there is no circumstance in which any women could potentially benefit from it.” Even though he disparaged as “however hypothetical and unsubstantiated by scientific evidence” the claim that partial-birth abortion has “some safety advantages . . . for some women in some circumstances,” he concluded that the existence of a division of medical opinion on the matter required him to rule that the federal partial-birth abortion law was unconstitutional. (For a fuller discussion of Casey's ruling, see this 2004 essay by Shannen Coffin.)

After the Court's ruling last year, however, the extreme standard that Judge Casey (plausibly but not necessarily correctly) discerned in Stenberg no longer applies. Instead, the usual standards of evidence do. In bringing an as-applied challenge, the abortion industry would have to show (in the Court's words) that “in discrete and well-defined circumstances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used” to “protect the health of the woman.” It hasn't dared even to try to do so.

Planned Parenthood and its allies continue to maintain that bans on partial-birth abortion threaten women's health. Perhaps they will bring as-applied challenges to the federal partial-birth abortion ban one of these days. But their failure to have done so over the past year naturally invites suspicion that they are, to paraphrase their own Ron Fitzsimmons, just lying through their teeth once again.

– Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's “Bench Memos” blog.

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