Why the Partial Birth Abortion Ban Was Struck Down

On Tuesday (June 1), U. S. District Court Judge Phyllis J. Hamilton ruled that the Partial Birth Abortion Ban Act of 2003 is unconstitutional, and enjoined Attorney General John Ashcroft from enforcing it. The mainstream press covered the fact of the injunction and devoted a line or two to Hamilton’s reasoning, before going off into the usual he-said-she-said coverage. The White House got to make its standard denunciation of judges who “legislate from the bench,” and John Kerry promised “appoint judges that are committed to upholding the Constitution, not pursuing an ideological agenda.”

What is lost in all this “objective” coverage are the questions most reasonable Americans would like answered: Who is right? Independent of the usual partisan tug-of-war over abortion, was this a good law or not? Was the judge “legislating” or “upholding the Constitution”? Judge Hamilton's 117-page opinion answers these questions very clearly, and paints a picture of Congress not only thumbing its nose at previous Supreme Court rulings, but attempting to legislate scientific truth as well.

The Story So Far

“Partial birth abortion” is one of those Orwellian neologisms like “death tax”. It arises from the focus groups of right-wing think tanks rather than the medical profession, and so sounds really horrible without meaning anything all that precise. It conjures up images of (as the PBA Ban Act itself puts it) “the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person’.”

The State of Nebraska banned partial birth abortions in a bill that was declared unconstitutional by the Supreme Court in Stenberg v. Carhart (2000). The current bill is Congress’ response to the Stenberg decision. It is so similar to the Nebraska bill that numerous federal courts (including Judge Hamilton’s Northern California district) declared a temporary injunction against enforcement as soon as it was passed, so that courts would have a chance to examine its constitutionality. Hamilton’s ruling (Planned Parenthood v. Ashcroft) makes the injunction permanent.

In its Stenberg decision, the Supreme Court summarizes its previous abortion decisions as follows:

(1) Prior to viability [of the fetus], a woman has a constitutional right to choose to terminate her pregnancy. ... Prior to viability, a law that places an “undue burden” on a woman’s decision to terminate her pregnancy is unconstitutional.
(2) Subsequent to viability, the state may regulate and even proscribe abortion “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The Court found the Nebraska law unconstitutional on both grounds: It contained no exception for the preservation of the mother’s health, and it placed an undue burden on a woman seeking a previability abortion.

These legal problems arise from the politics of the abortion issue. A health-of-the-mother exception is unacceptable to pro-lifers, because it keeps the decision in the hands of doctors, when the whole point of the law is to move the decision into the hands of law enforcement officials like John Ashcroft. And the viability issue arises because of the medical imprecision of the term “partial birth abortion”. (Viability should not be an issue if we are only talking about babies “mere inches away” from personhood, after all.). When the term actually gets defined, it tends to include procedures that may occur in a second-trimester or even a first-trimester abortion. This may or may not be intentional: Perhaps it is an attempt to outlaw a broad swath of abortions under the popular juggernaut of a partial birth abortion ban, or it could just be the kind of legal/medical incompetence that typically happens when ideology trumps expertise.

So when the pro-life Republican majority in Congress attempted to answer Stenberg, it could not do so by changing the merits of the law. A health exception is out of the question, and “partial birth abortion” continues to be a term chosen for its focus-group response rather than its medical precision. Congress answered, in effect, by arguing with the Court rather than addressing its issues. The Partial Birth Abortion Ban Act of 2003 contains a series of “findings of fact” that explain why a health-of-the-mother exception is unnecessary:

Pursuant to the testimony received during extensive legislative hearings during the 104th, 105th, and 107th Congresses, Congress finds and declares that: ... Partial-birth abortion poses serious risks to the health of a woman undergoing the procedure. ... There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. ... A prominent medical association has concluded that partial-birth abortion is “not an accepted medical practice,” that it has “never been subject to even a minimal amount of the normal medical practice development,” that “the relative advantages and disadvantages of the procedure in specific circumstances remain unknown,” and that “there is no consensus among obstetricians about its use”. The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is “ethically wrong,” and “is never the only appropriate procedure”. ... A ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy. ... In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life. ... The gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure. ... It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.

All of which leads to the following conclusion:

Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

In short, there is no need to put a health-of-the-mother exception into the law, because the issue never comes up. Congress says so. Any doctor who thinks he needs to perform such a procedure to protect a woman’s health is just wrong. Take that, Supreme Court!

The Issues to be Decided

Judge Hamilton faced three significant issues: (1) The new law contains a definition of “partial-birth abortion”. What does it really outlaw, and are any of the outlawed abortions constitutionally protected? (2) Is the law “unconstitutionally vague”? In other words, is the definition of the outlawed procedures precise enough that doctors have a reasonable opportunity to know whether or not they are breaking the law? (3) Do Congress’ findings of fact really eliminate the need for a health-of-the-mother exception?

Not to keep you in suspense, her answers are: (1) The definition of “partial birth abortion” is sufficiently broad that it does include constitutionally protected abortions; (2) the law is unconstitutionally vague; and (3) courts are obliged to give some weight to congressional findings, but not when Congress intentionally sticks its head up its ass. (Hamilton phrased this much more politely, but the import is clear.)

In addition, Judge Hamilton needed to make decisions (as we all do) about who to trust. In the course of the three-week trial, she heard testimony from so-called experts on each side. The plaintiffs (Planned Parenthood et al) brought in doctors who had performed thousands of abortions, while the government brought in many of the same witnesses who had testified in the congressional hearings leading up to the law. Hamilton was forced to ask the question that so often comes up in politically charged cases: What (other than ideology) are these people actually experts in? She found that none of the government witnesses

had performed the intact D&E procedure at issue in this case. Moreover, none had been instructed regarding the procedure or had personally observed the procedure being performed.

Another government witness professed to be an expert in fetal pain. Sure, anybody can look at an ultrasound of a fetus being poked with a pin and think “That had to hurt.” But this guy was an expert.

That kind of thing flies in the Republican Congress, but clearly Judge Hamilton was not impressed. Her decision does not record her courtroom exchanges with these “experts”, but reading between the lines it is possible to infer a few embarrassing moments as the government presented its case.

What is a Partial Birth Abortion?

Because “partial birth abortion” is not a medical term and has no generally accepted meaning, the law includes the following definition:

an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered infant, performs this act, and then completes delivery of the dead infant.

The essential legal question is now: What medical procedures fall under this definition?

Perhaps as a reaction to Congress’ finding about “the dearth of evidence in the Stenberg trial court record supporting the district court’s findings,” Hamilton's opinion contains a short primer on abortion methods. Filtering out information that goes far beyond what most people ever want to know, the great majority of legal second-trimester abortions are performed by a technique called “dilation and extraction”, in which the cervix in dilated and then the surgeon removes the fetus with forceps, usually piece by piece. This is abbreviated as D&E. Subsequent to the political debate over partial birth abortions, the American College of Obstetricians and Gynecologists coined the term “intact D&X” to describe something more-or-less like Congress' definition.

The government claims that the law does not make D&E illegal, just intact D&X. So a key point is whether intact D&X is well-defined procedure, or whether it is just one of the ways a D&E can come out, depending on factors that can’t be foreseen prior to surgery. In other words, if in the course of a D&E the fetus comes out in one big piece rather than a lot of little ones, does the procedure turn into an intact D&X? Judge Hamilton summarizes the testimony:

Most significantly, all of the testifying physicians who have performed intact extractions refer to this procedure as a variant of D&E, and not as an entirely separate procedure. ... The only physicians who referred to it as a separate procedure were witnesses who had never performed the procedure. ... Accordingly, the court will refer to the procedure throughout this order as “intact D&E.”

Does the Law Create an Undue Burden?

Under Roe v Wade, a woman has a right to abort a fetus prior to viability, and the government has a right to interfere in her decision only after viability. (Eventually the Court is going to have to reconsider what “viability” means as medical procedures improve, but for now it generally means “third trimester”.) In Stenberg, the Supreme Court (in Hamilton’s summary):

held that Nebraska’s partial-birth abortion ban posed an unconstitutional undue burden on a woman’s decision because the language of the statute was broad enough that it could be interpreted to include a ban on previability D&Es, the most common second trimester abortion procedure, thereby unconstitutionally placing an obstacle in the path of a woman seeking a previability second trimester abortion.

The plaintiffs in this case argue that this law suffers from the same defect:

They argue that the definition of “partial-birth abortion” in the Act is so broad that any abortion performed by the two safest, most common abortion procedures used in the second trimester of pregnancy, prior to fetal viability – D&E and induction – could proceed so as to violate the Act. Accordingly, plaintiffs assert that the Act is unconstitutional as a matter of law. ... The government’s position is simply that Congress intended to ban only intact D&Es, and that the Act is not vague and should be interpreted to apply only to intact D&E abortions -- not to D&Es by disarticulation, inductions, or other abortion procedures. Therefore, according to the government, there can be no undue burden.

Hamilton proceeds to chapter-and-verse the Supreme Court’s logic in Stenberg, finding that this law suffers from the same defects. Hamilton even doubts that Congress intended to exempt D&Es.

First, as the Supreme Court noted in Stenberg in rejecting a nearly identical argument by the state of Nebraska, if Congress did not intend to prohibit procedures other than intact D&Es, it would have been simple for it to exclude other procedures. ... Moreover, it does not appear to this court that Congress simply overlooked the Stenberg Court’s language to this effect. Instead, it appears that Congress intentionally chose not to explicitly exclude D&Es. The government presented no evidence to this court that supported its arguments regarding congressional intent, and the Congressional Record suggests the contrary.

Similarly, if Congress had intended to protect only viable fetuses, it could have said so. But by using the term “living fetus” in the law rather than “viable fetus”, it cast a wider net. And even if such congressional intent to limit the ban could be shown, the explicit definition given in the law would trump it. And so

the court concludes that the definition of “partial-birth abortion” contained in the Act encompasses several second trimester abortion procedures in addition to intact D&E. Physicians may perform each element contained in the Act’s definition in any D&E procedure, and in the course of certain induction abortions and treatment of spontaneous miscarriages as well. And, because D&E procedures comprise nearly 85-95% of all second trimester abortions, the Act creates a risk of criminal liability during virtually all abortions performed after the first trimester, and “has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” ... A majority of the physicians who testified noted that because they “fear prosecution, conviction, and imprisonment,” the wide net cast by the Act could have and has already had the effect of impacting all previability second trimester abortion services that they provide to their patients.


To the extent that a woman seeks or requires an intact D&E abortion prior to viability, this Act would undoubtedly place a substantial obstacle in her path and decision. For the reasons stated above, the court finds that the Act is unconstitutional.

Is the Law Too Vague?

Hamilton already has enough ammunition to issue her permanent injunction, but she goes on to address the plaintiffs’ claim that the law is unconstitutionally vague, probably to give her opinion more weight as it goes up the appeal chain. First, she sets the appropriate legal standard:

to avoid unconstitutional vagueness, the Act must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards such that enforcement may be conducted in a non-arbitrary, non-discriminatory manner.

The merits of this claim resemble the merits of the undue burden claim: the law was written for its political appeal rather than legal or medical clarity. The definitions that are given cast a wider net than the politicians advertised, and consequently it is unclear just how far the law extends.

As plaintiffs note, several of the terms in the Act are ambiguous, including “partial-birth abortion,” “overt act,” “deliberately and intentionally,” and “living fetus.” The trial testimony of numerous physicians confirmed that, as physicians and practitioners providing abortion services, they do not understand exactly what the Act prohibits.

And so she finds the law unconstitutional on these grounds also.

What Is Medically Necessary?

The law in question allows the intact D&E procedure in cases where it is necessary to save a woman’s life, but contains no exception for preserving her health in cases where her life is not at risk. Previous Supreme Court rulings demand such an exception, but the law avoids it by stating in its findings-of-fact that the issue never comes up. The lawmakers’ intention is clearly that the court should trust its findings and not even hear testimony on the issue, but Hamilton heard testimony anyway, preferring to wait until she was writing her opinion to decide how much weight to give the Congressional findings.

The government offered “expert” testimony from the same people who had testified before Congress. This is a point in the opinion where Hamilton’s frustration with the political nature of the government's case comes through:

this court found that the government’s experts lacked the background, experience, and instruction to qualify as experts regarding the technique of the intact D&E procedure. Instead, the court allowed the government’s experts to testify only regarding their opinions on the safety of the procedure, based upon their review of the literature. The court noted that if it were to qualify the government’s witnesses, who did not “appear to have any personal experience with late-term abortion procedures at issue here,” it would mean that any obgyn would be considered an expert on late-term abortions.

The plaintiffs’ witnesses had the personal experience that Judge Hamilton expects from an expert, and gave reasons why an intact D&E might be safer than the alternatives. Mainly, they reason that if you can take most of the fetus out in one piece, you don’t need to keep sticking the forceps back in, and that has to be good. The operation can be over sooner and there is less risk of accidentally leaving fetal parts in the uterus.

The government testimony seemed to be seeking a higher standard of medical necessity. They generally argued that an intact D&E was never the only way to proceed with an abortion, not that it isn’t at times the safest way.

Both sides agreed that there has not been a large-scale scientific study comparing the relative safety of intact D&E to other forms of second-trimester abortion. Plaintiffs pointed out that there isn’t likely to be one, because (1) abortions in general are so safe that a large number would have to be observed to find any statistically significant difference in safety; (2) second-trimester abortions are sufficiently rare that a large number of hospitals would have to be involved; and (3) the abortion issue is so politically charged that the government is unlikely to come up with the funding for such a large study. In the absence of a conclusive study, plaintiffs argue that doctors should be allowed to use their medical judgment, and the government argued that

Because there is no significant authoritative data about intact D&E, while extensive authoritative data about the safety of other methods of second trimester abortion exists, the government presented evidence that physicians have a responsibility to use those other methods until such time that intact D&E is proven to be safe.

[It’s worth noting that conservatives use the same form of argument in many other political issues related to science, such as global warming or drug legalization: Claim that they should get the benefit of the doubt until there are conclusive scientific studies, and then block funding for the studies.]

A rather large portion of the Hamilton's opinion is taken up by a summary of the studies that do exist and the two parties’ differing interpretations of them. She boils it down to this:

the court finds that it is wholly appropriate for doctors, in their best medical judgment, to rely on their clinical judgment and these relatively small-scale retrospective studies in determining, with their patients, whether they wish to perform intact D&E abortions – just as the government’s experts rely on their clinical judgment (or “intuition”) in recommending induction abortions over D&E abortions, despite the lack of studies indicating that modern induction abortions are superior to D&Es and despite the fact that D&E remains overwhelmingly the procedure of choice for women undergoing second trimester abortions. ... Moreover, all of the doctors who actually perform intact D&Es concluded that in their opinion and clinical judgment, intact D&Es remain the safest option for certain individual women under certain individual health circumstances, and are significantly safer for these women than other abortion techniques, and are thus medically necessary.

Can Congressional Findings Trump Both the Courts and Science?

Hamilton’s finding on the safety of intact D&E runs exactly counter to Congress’ finding contained in the PBA Ban Act. How much deference is she obliged to give Congress’ findings?

In expecting the courts to respect its findings, Congress is relying on a number of principles of American jurisprudence, which basically boil down to the observation that law is a team effort and a good judge should be a team player. Courts are obliged to respect each others’ findings of fact in much the same way as NFL replay officials are obliged to respect the call made by the referee on the field: Don’t overturn a ruling just because you would have called it differently; only overturn rulings that are clearly wrong. The same idea applies to legal precedents. The current Supreme Court cannot overturn Roe v Wade, for example, just because it thinks it can do better. To overturn Roe, the Court would have to argue that the ruling is so wrong that it has no choice.

Moreover, the Supreme Court has acknowledged that Congress is in a better position than a court to make certain judgments. Congress can sit with an issue for years, hold open-ended hearings, and evaluate an issue as part of the broader sweep of policy. In addition, because it represents the people and has to face them in regular elections, Congress can be assumed to better understand the trends and currents of the larger society.

So how much deference does Hamilton owe the congressional findings in the PBA Ban Act? That depends in part on whether the findings rely on Congress’ special expertise. Many of the findings in the PBA Ban Act are re-interpretations of Stenberg and other court decisions. Hamilton holds that in these findings Congress has in fact stepped into the courts’ special area of expertise.

Accordingly, Congress’ legal conclusions and its characterization of the Supreme Court’s holding in Stenberg, and any additional legal analysis, is not entitled to deference by this court. Nor are any of Congress’ legal conclusions, which may be disguised as factual findings, entitled to deference by this court.

Judge Hamilton could let it go at that, but can’t resist pointing out exactly how Congress misinterpreted Stenberg, wrongly castigated the district court’s findings-of-fact in Stenberg, and exagerated the extent to which the Supreme Court was bound by the district court’s findings. (This particular congressional finding is an interesting voyage into the mirror world of right-wing propaganda. Congress puts forward the following excuse for the Supreme Court’s errors in Stenberg: A slipshod district court made erroneous findings of fact, which the Supreme Court was powerless to overturn. So Congress, unburdened by the court’s obligations to the lower court, can now correct those findings and bind the court to its corrected version of the facts. Hamilton debunks this rewriting of law and history in some detail.)

Congress’ findings about medical facts – in particular the one that intact D&E is never medically necessary, on which the whole case hangs – are more difficult for Hamilton to dismiss. She reviews several possible standards. The plaintiffs argue that the court should consider from scratch (the legal term is the Latin de novo) the issues raised by Congress, according no special weight to Congress’ pronouncements. The government argues that the congressional findings deserve “substantial deference”, a legal standard much closer to the replay-referee standard: If Congress’ judgment was a reasonable conclusion based on substantial evidence, then Hamilton has to yield to it, even if she would have looked at different evidence and made a different judgment. Various friend-of-the-court briefs recommend some in-between standard of deference, and Hamilton finds some merit in these.

In the end, though, Hamilton punts on this question, because she concludes that she can reject the key congressional finding even on the government’s terms:

It is apparent to this court, upon examination of the record before Congress and the evidence presented at trial, that Congress’ ultimate finding that “partial-birth abortion” is never necessary to preserve the health of the mother is the type of “finding” described by Justice Thomas in Lamprecht v. FCC. In that case, Justice Thomas noted: “We know of no support ... for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by ‘finding’ that black is white or freedom, slavery, judicial review would be an elaborate farce.” For all of the reasons discussed above, this court concludes that Congress’ “finding” that the intact D&E procedure is never medically necessary is unreasonable and is not supported by substantial evidence as was available to Congress at the time. Accordingly, this court declines to defer to Congress’ “finding.”

Yep, she means that Justice Thomas, the judge most likely to want to overrule her when this case reaches the Supreme Court. Back to you, Clarence.

Doug Muder

2 June 2004

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