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Gonzales v. Carhart, 550 U.S. 124

Supreme Court of the United States






Implied Fundamental Rights




A Federal partial-birth abortion is constitutional

Quick Notes

Congress made it a crime to carry out an abortion by a procedure that is referred to as an "intact D&E.  Congress defined the crime of performing a "partial-birth abortion" as requiring two intentional steps by the physician:

1.     First, the physician causes a still-living fetus to begin to be delivered until either

o    (a) in a head-first delivery, the entire head of the fetus is outside the mother's body; or

o    (b) in the case of a breech delivery, any part of the fetus' body past its naval is outside the mother's body; and

2.     Second, the physician performs an "overt act" on the partially-delivered fetus for the purpose of killing it.

o    The overt act must be something other than the mere completion of the delivery

o    Typically, the overt act consists of the physician's use of scissors to make an opening at the base of the fetus's skull, through which a surgical catheter evacuates the skull contents.


o         A law limiting abortions is valid so long as it promotes the government's legitimate interest in protecting the health of the woman and the life of the fetus without placing an undue burden on the woman's right to terminate her pregnancy.

o         A federal partial-birth abortion ban is constitutional.


Court - The Supreme Court concluded by a 5-4 vote that the federal statute was not invalid on its face.

1.     Not vague: - the federal statute here gave precise "anatomical landmarks" (head and navel, respectively) to establish a clear dividing line between forbidden abortion methods and permitted ones.

2.     Does not bar standard D&E's: the statute did not ban standard late-term D&E abortions (i.e., ones in which the fetus was dead and dismembered before being removed from the uterus). So any overbreadth problem was eliminated.

3.     Not an undue burden: The statute did not impose an undue burden on a woman's right to control her reproductive destiny. 

o    In reaching this conclusion, he seemed to endorse legislative goals and methods that no prior post-Roe decision had approved

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0



o         Whether the 2003 federal law banning certain partial-birth abortions, with no exception for when a woman's health is at risk, facially unconstitutional?  No.




o         District court rulings in favor of respondents, abortion doctors and abortion advocacy groups


o         United States Courts of Appeals for the Eighth and Ninth Circuits affirming district court rulings


o         Reversed.

o         The Court applied the Casey standard, which included the central premise that the Government had a legitimate, substantial interest in preserving and promoting fetal life. The Court concluded that this premise would be repudiated if it affirmed the judgments.

o         The Court held that the Act, on its face, was not void for vagueness and did not impose an undue burden from any overbreadth.

o         The Court rejected respondents' contention that the scope of the Act was indefinite.

o         The Act clearly proscribed performing only the intact dilation and evacuation procedure.

o         Further, the Act's scienter requirement narrowed the scope of the Act's prohibition and limited prosecutorial discretion.

o         The restrictions on second-trimester abortions were not too broad because the Act provided specific anatomical landmarks and included an overt-act requirement.

o         The Court also held that the Act's failure to allow the banned procedure's use where necessary for the mother's health did not have the effect of imposing an unconstitutional burden of the abortion right because safe medical options were available.

o         The Court found that the proper means to consider exceptions was by as-applied rather than facial challenges.




Key Phrases


Pl -   Gonzales

Df -   Carhart



o         These cases deal with federal statutes regulating abortions.

o         In particular the Partial-Birth Abortion Act of 2003.


o         Between eighty-five and ninety percent of the 1.3 million abortions performed in the U.S. each year take place in the first trimester (three months) of pregnancy.

Remainder - Second Trimester

o         Most of the remainder takes place in the second trimester, usually by "dilation and evacuation" (D & E).

o         A doctor may have to make ten to fifteen passes with a forceps to complete the "evacuation" part of this process, and the fetus is usually ripped apart as it is removed.

o         The procedure that was the impetus for various bans on "partial-birth" abortions is a variation of the D & E.

o         In 2003, following the Supreme Court's decision in the Stenberg case (striking down a Nebraska

o         abortion statute), Congress passed a new late-term abortion law that is the subject of this lawsuit.

o         The Act makes it a crime to perform certain partial-birth abortions known as "intact" D & Es.

o         The law provides an exception when the woman's life, but not her health, is in danger.

o         An abortion doctor challenged the Act as being facially invalid.


Justice Kennedy


Stenberg v. Carhart (5-4, Justice Breyer)

o         Invalidated a Nebraska statute banning partial birth abortions.

o         Where partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.

Invalidated on two separate grounds

1.     It contained no exception for ht preservation of the health of the mother required by Casey.

2.     It imposed an UNDUE BURDEN on the abortion right.


Court - Partial-Birth Abortion Act of 2003

o         This Act is more specific that Stenberg.

o         It is more prcised in coverage.

o         We conclude the Act should be sustained.


Section I-A

o         This Act proscribes a particular manner of ending fetal life.


Abortions that take place

o         85 to 90% of 1.3 million happen in the first 3 months.

o         #1)  Most common abortion:  Vacuum Aspiration (physical vacuums out the embryonic tissue).

o         #2)  Medical Alternative:  Mifepristone RU-486

o         The Act does not regulate Vacuum Aspiration or RU-486.

o         #3)  Dilation and Evacuation:  During the second trimester.

o    10 to 15 passes of ripping the baby from the mothers fetus piece by piece.

o         #4) Intact Dilation and Evacuation

o    The Doctor tries to extract the baby without ripping it apart.

o    Just horrible descriptions. 



Section I-B

o         Partial-Birth Abortion Act of 2003 was a response to Stenberg


Congress findings

o         A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

o         Second, and more relevant here, the Act's language differs from that of the Nebraska statute struck down in Stenberg.


The Act Provides

o         The Act criminalizes the performance of partial-birth abortions except when the abortion is NECESSARY to save the life of the mother.


o         A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

o         A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section


Section II

o         Government has a legitimate and substantial interest in preserving and promotion fetal life.


We assume the following principles for the purposes of this opinion.


May not prohibit termination of pregnancy before viability

o         Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy."

May not place an obstacle before the fetus attains viability

o         A state may not impose an undue burden, where the regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

May express profound respect for human life

o         On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose."

o         Casey, in short, struck a balance.

o         The balance was central to its holding.

o         We now apply its standard to the cases at bar.


Section III

o         The Acts purpose and scope is to regulate and proscribe, with exceptions or qualification, performing the intact D & E.


Respondent Arg

o         Reach of act is unclear an excessive.

o         Scope is indefinite.

o         Proscribes all D & Es.

o         Void for vagueness


Court - Not void and does not impose an undue burden, not invalid on its face.


Section III-A

o    The Act punishes "knowingly perform[ing]" a "partial-birth abortion."


1.     First, the person performing the abortion must "vaginally delive[r] a living fetus."


o    The Act does not restrict an abortion procedure involving the delivery of an expired fetus.

o    The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy).

o    The Act does apply both previability and postviability.


2.     Second, the Act's definition of partial-birth abortion requires the fetus to be delivered "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."

o    The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these "anatomical 'land-marks' "--where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother--the prohibitions of the Act do not apply.

o    (ONLY applies to body parts outside the naval)


3.     Third, to fall within the Act, a doctor must perform an "overt act, other than completion of delivery, that kills the partially delivered living fetus."

o    For purposes of criminal liability, the overt act causing the fetus' death must be separate from delivery.

o    And the overt act must occur after the delivery to an anatomical landmark.

o    This is because the Act proscribes killing "the partially delivered" fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark.


4.     Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion.

o    To begin with, the physician must have "deliberately and intentionally" delivered the fetus to one of the Act's anatomical landmarks.


o    If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable.

Doctor knows he will kill it

o    In addition, the fetus must have been delivered "for the purpose of performing an overt act that the [doctor] knows will kill [it]."

Intend it required

o    If either intent is absent, no crime has occurred.

o    This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind.


 Section III-B

o    The Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other.

o    Doctors performing D & E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability.


Section III-C


o    Whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad?  No undue burden.


Court - A review of the statutory text discloses the limits of its reach.

o    The Act prohibits intact D&E; and, notwithstanding respondents' arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts.


Section III-C(1)


o    The Act prohibits a doctor from intentionally performing an intact D&E.


Dual prohibitions are required for criminal liability

1.     First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation.

2.     Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps.

o    This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery.

o    The Act's intent requirements, however, limit its reach to those physicians who carry out the intact D&E after intending to undertake both steps at the outset.


The Act excludes most D&Es in which the fetus is removed in pieces, not intact.

o         If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability.

o         The removal of a small portion of the fetus is NOT prohibited.


By adding an overt-act requirement Congress sought further to meet the Court's objections to the state statute considered in Stenberg.

o         The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure.


Section III-C(2)


Court - Contrary arguments by respondents are unavailing.



Respondents Arg - look to situations that might arise during D&E


Court - These situations not examined in Stenberg.


Respondents contend - relying on the testimony of numerous abortion doctors

o         D&E may result in the delivery of a living fetus beyond the Act's anatomical landmarks in a significant fraction of cases.

o         Doctors cannot predict the amount the cervix will dilate before the abortion procedure.

o         It might dilate to a degree that the fetus will be removed largely intact.

o         To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus.

o         Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner.


Court - Does not take account of the Act's intent requirements

o         This requirement preclude liability from attaching to an accidental intact D&E.

Intake delivery is ALMOST always a conscious choice

o         The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance.

D&E cannot be performed without INTENT and FORESEEABILITY

o         This evidence belies any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E.


Section IV


o         Whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions?  No substantial obstacle.


Court - Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity.


For the Act to be Unconstitutional

o         If its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Casey.


Previability and Postviability

o         The abortions affected by the Act's regulations take place both previability and postviability;

o    So the quoted language and the undue burden analysis it relies upon are applicable.


Section IV-A

o         That Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process.



o         Where [the State] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.




Section IV-B


o         Whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where "necessary, in appropriate medical judgment, for the preservation of the . . . health of the mother?

o    The Act does not impose an undue burden.


To Be Unconstitutional

o          If it the Act "subject[ed] [women] to significant health risks."


Respondents Arg - Intact D&E is better for the mother.

o         Less cervical laceration or uterine perforation.

o         Requires fewer passes.

o         Reduces the risks that fetal parts will remain in the uterus.


State's interest in promoting respect for human life at all stages in the pregnancy.

o         Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures.

o         The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.


Court - We retain an independent constitutional duty to REVIEW factual findings where constitutional rights are at stake.


Respondents Arg - Barred produced must be for a health exception.


Court - A zero tolerance policy would strike down legitimate abortion regulations.


Section V

o         The facial attacks should not have been entertained in the first instance.

o         Respondents have not demonstrated the Act was void for vagueness.

o         They did not demonstrated it imposed and undue burden on a womans right to abortion.




Concur - Justice Thomas, Justice Scalia

o         The Courts abortion jurisprudence has not basis in the Constitution.


DISSENT - Justice Ginsburg, Stevens, Souter, Breyer


The Court refuses to take Casey and Stenberg seriously.

o         It applauds federal intervention to ban a procedure found to be necessary under certain circumstances by the American College of Obstetricians and Gynecologists.


It blurs the line between post-and pre-viability abortions.

o         Moreover, the Act in question does not further the asserted governmental interest of protecting the life of the fetus, for the Act attacks merely the method of abortion, not the right of abortion.


No fetus is saved by operation of this Act.

o         The Court admits that "moral concerns" are at work, but still finds the ban constitutional because the respondents failed to show it would be unconstitutional in a large fraction of relevant cases.


But the very purpose of the health exception is to protect women in those exceptional cases.

o         The absence of a health exception burdens all women for whom it is relevant: women who, in their doctors' opinions, require an intact D & E because other procedures would put their health at risk.


Lack of mother's-health exception

o    This was the first time since Roe that the Court had "blessed a prohibition with no exceptions safeguarding a woman's health."


"Regret" rationale criticized

o    Ginsburg also criticized the Court's "emotional distress" rationale, that is, the theory that government was properly acting to spare women the emotional pain of learning the details of the procedure only after it had been carried out.

o    She pointed out that the Court was not permitting government to require that women be accurately informed of the risks of the procedure (something that Casey had already allowed); instead, the Court was "depriv[ing] women of the right to make an autonomous choice, even at the expense of their safety."

o    She concluded that "this way of thinking reflects ancient notions about women's place in the family and under the Constitution - ideas that have long since been discredited."



o    Finally, Ginsburg was deeply troubled by the majority's insistence that as-applied challenges, rather than the present facial attack, were the proper means to handle those cases where women's health was in fact at stake.

o    Virtually all of the Supreme Court's post-Roe abortion cases had been facial attacks.

o    She argued that forcing women to wait for as-applied challenges "jeopardizes women's health and places doctors in an untenable position."

o    For instance, if a woman had a particular medical condition that had not been the subject of a prior as-applied challenge, the treating physician would not have any clarity about whether the woman would have a constitutional right to have the partial-birth procedure, and therefore the physician would risk prosecution and imprisonment if she performed the procedure.


"Chip away" at right

o    Ginsburg closed by saying that the statute, and the Court's defense of it, "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court[.]"




o         A law limiting abortions is valid so long as it promotes the government's legitimate interest in protecting the health of the woman and the life of the fetus without placing an undue burden on the woman's right to terminate her pregnancy.

o         A federal partial-birth abortion ban is constitutional.



Class Notes