CONSTITUTIONAL ANALYSIS OF "PARTIAL BIRTH ABORTION" BAN

This memorandum addresses the constitutionality of S. 6, a proposed federal statute that would criminalize a certain abortion procedure whether or not the fetus is viable, and without making any exception for the health of the mother.

1. The proposed statute (called the "Partial-Birth Abortion Ban Act of 1997"), in exempting from prohibition only those abortions necessary to save the life of the pregnant woman, is undeniably inconsistent with a core holding of Roe v. Wade, 410 U.S. 113 (1973) -- a holding explicitly reaffirmed in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Roe held that, even after a fetus was viable, the State could not place the interests and welfare of that fetus above those of the method in preserving her own life and health. Accordingly, the State, after fetal viability may "regulate, even proscribe, abortion except where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother." Roe, 410 U.S. at 165 (emphasis added). Moreover, in Doe v. Bolton, 410 U.S. 179 (1973), the companion case to Roe, the Court emphasized that the health of the mother represents a medical judgment that "may be exercised in light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. Id. at 192. Even the dissenters in Roe and Doe suggested that abortion procedures required to avoid "substantial hazards to either life or health" could not constitutionally be forbidden. Doe, 410 U.S. at 223 (White, J., dissenting) emphasis added); see also Roe, 410 U.S. at 173 (Rehnquist, now C.J. dissenting). Perhaps most importantly, the controlling opinion in Casey explicitly reaffirmed Roe's requirement of an exception for the life or health of the pregnant woman, adopting verbatim the language quoted above from the Roe majority opinion. Casey, 505 U.S. at 879. The real debate in Roe and its progeny through Casey centered on whether so-called "elective" abortion was part of a woman's privacy and liberty; it appeared to be common ground that, however tragic it might be, an abortion require to protect a woman's life or health fell beyond the State's power to proscribe. Ironically, because many of the abortions that the proposed statute would ban involve fetuses that will never be "viable" because of their deformities would make it impossible for them to survive for any sustained period outside the womb -- there is dispute over just how many of the proscribed abortions would involve such fetuses, but no dispute that a considerable number would -- it follows that not even the broadest imaginable health exception could save the proposed statute's constitutionality as applied to many of the abortions it would purport to outlaw. The next paragraph develops this point in somewhat greater detail.

2. The proposed federal statute would forbid a described medical procedure regardless of whether the fetus being aborted was viable. Indeed, S. 6 is manifestly intended to prohibit at least some abortions of fetuses with severe abnormalities (such as anencephalic condition, in which the brain develops outside the head) that would likely render them unable to live independently outside the womb for more than a very short time. The vilified "partial-birth abortions" described in the statute clearly include pregnancy terminations (even if the pregnancy is in its final stages) in woman whose fetuses would in no event be able to survive for more than minutes or hours outside the womb. See, e.g., Testimony of Coreen Costello before the House Judiciary Committee, Subcommittee on the Constitution, March 21, 1996; Testimony of Mary-Dorothy Line before the Subcommittee on the Constitution, March 21, 1996. Yet the controlling opinion in Casey prohibits regulations that place an undue burden on women seeking abortions, and holds categorically that this test renders unconstitutional any regulation or requirement that has the purpose or effect of placing a substantial obstacle -- let alone a flat prohibition -- in the path of a woman seeking to abort a non-viable fetus. It is true that Casey allowed for informed consent requirements as well as regulations designed to further the health or safety of a woman seeking an abortion, but the proposed law is plainly not designed to further those interests. It does not inform a woman but directly bans a particular procedure, one that is performed specifically because it is less likely to harm the pregnant woman. The proposed statute is thus analogous to the prohibition on saline amniocentesis that the Supreme Court invalidated in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). Many physicians considered saline amniocentesis to be safer for the pregnancy woman than other methods of abortion, just as many physicians consider so-called partial-birth abortions to be safer for certain pregnant women that the alternatives. The Court in Danforth emphasized this perceived safety advantage in ruling that the State could not prohibit abortions using saline amniocentesis. Id. at 78-79.

3. Even if supporters of the proposed statute attempted to argue the prohibition was designed to benefit the fetus, and even if they could demonstrate that the alternative methods of abortion would in fact be less awful from the perspective of the fetus itself -- a dubious proposition at best -- Supreme Court precedent forecloses the option of placing the well-being of the fetus above the health and safety of the pregnant woman -- even where the fetus is viable, and certainly where the fetus could not survive lone outside the woman in any event and thus is not "viable" as the Court has defined that term. In Thornburgh v. America College of Obstetricians, 476 U.S. 747 (1986), the Court specifically rejected as unconstitutional a proposal that the State be permitted to "trade" some of the woman's well-being for an increase in that of the fetus -- and in Thornburgh, in contrast to the proposed bill, the asserted interest on the fetus's side of the trade-off was in enhancing the prospects for fetal survival. Id. at 768-69.

4. The proposed statute attempts to elide the issue of viability with a peculiar bit of alchemy that raises its own constitutional problems: it defines a "partial-birth abortion" as an abortion in which "the person performing the abortion partially vaginally delivers a living fetus before killing the infant," and it specifies -- as it saying it could make it so -- that "the terms ‘fetus' and ‘infant' are interchangeable." Both this novel definition of "infant," and whatever protections that designation may be designed to evoke or entail, apply to any fetus, however, hopeless its condition, that may be brought into the vagina during an abortion, even if this occurs long before the fetus is sufficiently developed to feel pain or to approach viability, and even if this is done with respect to a fetus so badly deformed or disabled that it would never be "viable" even if it were to come to term and to be delivered in the ordinary manner, only to die shortly thereafter. The proposed statute therefore seeks to make the legality of the physician's conduct in facilitating the woman's exercise of her reproductive freedom turn no on the viability of the fetus or on its capacity to perceive or on the health of the woman but, strangely, on the physical location of the fetus between the uterus and the vagina at the moment its development within the woman is deliberately halted -- as though the fetus that is being aborted were suddenly to acquire the capacity to experience sensations of pain, or were to acquire other traits of personhood, simply by virtue of having been moved from one point to another within the woman's body prior to completion of the abortion procedure, rather than by virtue of its own state of neurological or other development. Evidently unable to identify in any other manner the procedure they wish to outlaw, the statute's authors have thus fastened upon anatomical details that bear no relationship whatsoever even to the concern with fetal dignity or sensation that supposedly animates both the statute's title and its structure. The authors' chosen definition of which abortions to condemn as "partial birth abortions," even if readily understandable in terms of the ability to persuade the general public that something gratuitously cruel and terrible is being prohibited, and hence in terms of the public relations objectives of the draftsmen, defies plausible justification in terms of anything real and might well fail even a test of minimum rationality, much less the far more stringent test of "undue burden" that the Court applies to regulations of abortion procedures. In any event, and quite apart from the irrationality introduced into the law by the proposed definition, the fact is that fetal viability is the constitutionally significant event, ad the bill's barely-concealed attempt to apply an altogether different standard is flatly inconsistent with the Liberty Clause of the Fifth and Fourteenth Amendments as construed by the Supreme Court in Casey.

5. Given the seemingly fatal constitutional infirmities in the proposed Partial Birth Abortion ban, one is led to wonder whether the insistence on enacting some new federal law in this area -- despite the absence of any reason to doubt the ability of the States to enact laws of their own dealing with precisely the same subject matter -- reflects more than a desperate desire to prove that Congress is capable of doing something about an obviously tragic procedure that everyone wishes were never necessary. There is, no doubt, a time and a place for such demonstrations of congressional determination, even in eras supposedly dedicated to the devolution of power to the States. But I doubt that experimenting with the lives and health of women, and with their ability to control their own reproductive destiny, represents a fit occasion for such a show of federal force.