Ethics & Public Policy Center

The Face-Off Over Partial-Birth Abortion

Published in National Review Online on April 23, 2007



In last week’s Supreme Court ruling in Gonzales v. Carhart, the five justices in the majority who upheld the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003 displayed judicial restraint by properly deferring to the democratic processes. The four justices in dissent, by contrast, would have invalidated the entire act based on their judgment that it might in some circumstances unconstitutionally imperil the health of a woman seeking an abortion.

Underlying the divide between Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent are two very different approaches to assessing so-called “facial” challenges to abortion regulations. The difference between these approaches reveals the enormous gap between the majority’s sound exercise of judicial restraint and the dissent’s aggressive judicial activism.

Let’s begin by explaining the legal jargon of facial vs. as-applied challenges. A facial challenge to a law (or to a set of legal provisions) aims to strike down the entire law, while an as-applied challenge seeks merely to prevent the application of the law in particular, defined circumstances. As the Supreme Court summarized its settled practice in United States v. Salerno (1987), to prevail on a facial challenge, “the challenger must establish that no set of circumstances exists under which the [law] would be valid.” The only recognized exception to this Salerno rule is in the “limited context” of First Amendment speech protections. In that context, a facial challenge to a law will prevail if the challenger shows that the restriction bans or chills a substantial amount of protected speech.

An illustration might be helpful. Assume that a federal law bars private ownership of all firearms and that someone who wants to buy machine guns argues that the federal law (and not just the application of the law to ownership of machine guns) is unconstitutional under the Second Amendment. Under the Salerno rule, the facial challenge would fail unless the Second Amendment is determined to protect ownership of all firearms.

The Salerno rule for facial challenges promotes judicial restraint by requiring that judges defer to legislative enactments that have permissible applications. At the same time, persons alleging that laws have been (or threaten to be) unconstitutionally applied against them are free to pursue as-applied challenges tailored to their circumstances.

It is beyond dispute that the federal partial-birth ban has plenty of constitutionally permissible applications. Even the objections that Justice Ginsburg raises in her dissent, for example, do not reach the countless instances in which the law prevents the partial-birth method from being used for post-viability abortions where there is not even a claim that it serves the mother’s health interests. In short, under the Salerno standard, Gonzales v. Carhart is a slam-dunk winner for the majority’s position.

Why isn’t this the end of the story? Well, although the First Amendment speech context is the only recognized exception to the Salerno rule, the Court on an ad hoc basis has (in Justice Scalia’s apt summary), “without any attempt at explanation, created entirely irrational exceptions to the [Salerno] rule, when the statutes at issue concerned hot-button social issues on which ‘informed opinion’ was zealously united.”

One such instance occurred in Planned Parenthood v. Casey in 1992. The one provision that a majority of the Court invalidated in that case required that a married woman, before having an abortion, give the abortion provider a signed statement that she has notified her spouse of her impending abortion. (The requirement did not apply in cases of medical emergency or in cases in which the woman stated that her husband was not the father of her child, that he could not be located, that the pregnancy resulted from spousal sexual assault that she had reported, or that she believed that notification would cause her husband or someone else to physically injure her.) Without any mention of the Salerno rule, the five-member majority asserted that the provision unconstitutionally applied to “a large fraction of the cases in which [it] is relevant,” and it defined the class of “relevant” cases as “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” Of course, even as to this artificially narrowed class, the majority’s ability to hypothesize only a “large fraction” of cases demonstrated that the challengers had failed to establish — as the Salerno rule required — that no permissible applications of the provision existed.

A second instance occurred seven years ago in Stenberg v. Carhart, the case in which a five-justice majority invalidated Nebraska’s ban on partial-birth abortion. With no analysis or explanation, the Stenberg majority applied the polar opposite of the Salerno rule: the hypothetical possibility that Nebraska’s ban might have any impermissible applications led the Court to invalidate it in toto. As Justice Thomas pointed out in dissent, not even the loose standard applied to the spousal-notice provision in Casey could justify facial invalidation of the Nebraska law, since it was “[i]ndisputabl[e]” that the absence of a health exception to the ban on partial-birth abortion would not affect a “large fraction” of the women who wished to obtain a safe late-term abortion.

Fast-forward to last week’s ruling in Gonzales v. Carhart. Justice Kennedy’s majority opinion properly concluded that the facial challenge to the partial-birth ban failed both the Salerno rule and the ad hoc “large fraction” approach taken in Casey. It was therefore unnecessary, he concluded, to determine which test applied.

Justice Ginsburg, in her dissent, purported to apply the “large fraction” approach of Casey. But she radically redefined — and shrank — the denominator of the fraction. As she put it, “the absence of a health exception burdens all women for whom it is relevant — women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk.” (Emphasis in original). Thus, she asserted, there is “no fraction because the numerator and the denominator are the same.” But the relevant class (the denominator) under the Casey approach consists of the much larger group of women affected by the partial-birth ban. It includes, in other words, not just those who hypothetically have a health reason to undergo partial-birth abortion but the much larger group who, apart from any health reason, would undergo the partial-birth method.

Ginsburg’s approach is the same lawless approach that the Stenberg majority took (and that it did not even attempt to reconcile with either Salerno or Casey). But she is wrong in contending that her approach is consistent with the “large fraction” approach of Casey. Had the majority in Casey defined the denominator in the same way that Ginsburg did, it would have identified the relevant class not as it did — “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement” — but as the subset of such women who would actually experience “adverse consequences” from providing notice. Stated mathematically, Ginsburg’s approach always results in the numerator being equal to the denominator, so it could never yield a fraction less than one.

Remarkably, Ginsburg’s approach to facial challenges of abortion regulations is even less deferential to the legislative process than the First Amendment exception to the Salerno rule. The First Amendment exception at least requires challengers to show that the challenged law is substantially overbroad. Ginsburg’s approach is (to borrow Kennedy’s label) a “zero tolerance policy” that would invalidate an abortion regulation in its entirety if that regulation had, or threatened, a single possible impermissible application. Thus, Ginsburg and her fellow dissenters treat the concocted “right” of abortion as the supreme American freedom, and they resort to extraordinary gimmicks to override democratically adopted enactments on this subject.

The Salerno rule should apply to facial challenges to abortion regulations, just as it applies to all other facial challenges outside the context of First Amendment speech protections. The “large fraction” standard that the Casey majority applied, without reflection or explanation, is unprincipled as well as nebulous. (At what point does a fraction become large?) But even the Casey standard is modest and restrained compared to Ginsburg’s extravagant judicial activism in her Gonzales v. Carhart dissent.

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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