OPINION OF THE COURT
GONZALES V. CARHART
550 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NOS. 05-380 AND 05-1382
ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER
05–380
v.
LEROY CARHART et al.
on writ of certiorari to the united states
court of appeals for the eighth circuit
ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER
05–1382 v.
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.,
et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[April 18, 2007]
Justice Kennedy
delivered the opinion of the Court.
These cases require us to
consider the validity of the Partial-Birth Abortion Ban Act of 2003
(Act), 18 U. S. C. §1531 (2000 ed., Supp. IV), a federal
statute regulating abortion procedures. In recitations preceding
its operative provisions the Act refers to the Court’s opinion in
Stenberg v.
Carhart,
530 U. S. 914 (2000),
which also addressed the subject of abortion procedures used in the
later stages of pregnancy. Compared to the state statute at issue
in
Stenberg, the Act is more specific concerning the
instances to which it applies and in this respect more precise in
its coverage. We conclude the Act should be sustained against the
objections lodged by the broad, facial attack brought against
it.
In No. 05–380
(Carhart) respondents
are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill
L. Vibhakar, doctors who perform second-trimester abortions. These
doctors filed their complaint against the Attorney General of the
United States in the United States District Court for the District
of Nebraska. They challenged the constitutionality of the Act and
sought a permanent injunction against its enforcement.
Carhart v.
Ashcroft, 331 F. Supp. 2d 805
(2004). In 2004, after a 2-week trial, the District Court granted a
permanent injunction that prohibited the Attorney General from
enforcing the Act in all cases but those in which there was no
dispute the fetus was viable.
Id., at 1048. The Court of
Appeals for the Eighth Circuit affirmed. 413 F. 3d 791 (2005).
We granted certiorari.
546 U. S. 1169
(2006).
In No. 05–1382
(Planned Parenthood)
respondents are Planned Parenthood Federation of America, Inc.,
Planned Parenthood Golden Gate, and the City and County of San
Francisco. The Planned Parenthood entities sought to enjoin
enforcement of the Act in a suit filed in the United States
District Court for the Northern District of California.
Planned
Parenthood Federation of Am. v.
Ashcroft, 320
F. Supp. 2d 957 (2004). The City and County of San Francisco
intervened as a plaintiff. In 2004, the District Court held a trial
spanning a period just short of three weeks, and it, too, enjoined
the Attorney General from enforcing the Act.
Id., at 1035.
The Court of Appeals for the Ninth Circuit affirmed. 435 F. 3d
1163 (2006). We granted certiorari. 547 U. S. ___ (2006).
I
A
The Act proscribes a particular
manner of ending fetal life, so it is necessary here, as it was in
Stenberg, to discuss abortion procedures in some detail.
Three United States District Courts heard extensive evidence
describing the procedures. In addition to the two courts involved
in the instant cases the District Court for the Southern District
of New York also considered the constitutionality of the Act.
Nat. Abortion Federation v.
Ashcroft, 330
F. Supp. 2d 436 (2004). It found the Act unconstitutional,
id., at 493, and the Court of Appeals for the Second
Circuit affirmed,
Nat. Abortion Federation v.
Gonzales, 437 F. 3d 278 (2006). The three District
Courts relied on similar medical evidence; indeed, much of the
evidence submitted to the
Carhart court previously had
been submitted to the other two courts. 331 F. Supp. 2d, at
809–810. We refer to the District Courts’ exhaustive opinions in
our own discussion of abortion procedures.
Abortion methods vary depending
to some extent on the preferences of the physician and, of course,
on the term of the pregnancy and the resulting stage of the unborn
child’s development. Between 85 and 90 percent of the approximately
1.3 million abortions performed each year in the United States take
place in the first three months of pregnancy, which is to say in
the first trimester.
Planned Parenthood, 320 F. Supp.
2d, at 960, and n. 4; App. in No. 05–1382, pp. 45–48. The most
common first-trimester abortion method is vacuum aspiration
(otherwise known as suction curettage) in which the physician
vacuums out the embryonic tissue. Early in this trimester an
alternative is to use medication, such as mifepristone (commonly
known as RU–486), to terminate the pregnancy.
Nat. Abortion
Federation, supra, at 464, n. 20. The Act does not
regulate these procedures.
Of the remaining abortions that take place
each year, most occur in the second trimester. The surgical
procedure referred to as “dilation and evacuation” or “D&E” is
the usual abortion method in this trimester.
Planned
Parenthood, 320 F. Supp. 2d, at 960–961. Although
individual techniques for performing D&E differ, the general
steps are the same.
A doctor must first dilate the cervix at least
to the extent needed to insert surgical instruments into the uterus
and to maneuver them to evacuate the fetus.
Nat. Abortion
Federation, supra, at 465; App. in No. 05–1382, at 61. The
steps taken to cause dilation differ by physician and gestational
age of the fetus. See,
e.g., Carhart, 331
F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874,
876–877, 880, 883, 886. A doctor often begins the dilation process
by inserting osmotic dilators, such as laminaria (sticks of
seaweed), into the cervix. The dilators can be used in combination
with drugs, such as misoprostol, that increase dilation. The
resulting amount of dilation is not uniform, and a doctor does not
know in advance how an individual patient will respond. In general
the longer dilators remain in the cervix, the more it will dilate.
Yet the length of time doctors employ osmotic dilators varies. Some
may keep dilators in the cervix for two days, while others use
dilators for a day or less.
Nat. Abortion Federation,
supra, at 464–465;
Planned Parenthood, supra, at
961.
After sufficient dilation the surgical
operation can commence. The woman is placed under general
anesthesia or conscious sedation. The doctor, often guided by
ultrasound, inserts grasping forceps through the woman’s cervix and
into the uterus to grab the fetus. The doctor grips a fetal part
with the forceps and pulls it back through the cervix and vagina,
continuing to pull even after meeting resistance from the cervix.
The friction causes the fetus to tear apart. For example, a leg
might be ripped off the fetus as it is pulled through the cervix
and out of the woman. The process of evacuating the fetus piece by
piece continues until it has been completely removed. A doctor may
make 10 to 15 passes with the forceps to evacuate the fetus in its
entirety, though sometimes removal is completed with fewer passes.
Once the fetus has been evacuated, the placenta and any remaining
fetal material are suctioned or scraped out of the uterus. The
doctor examines the different parts to ensure the entire fetal body
has been removed. See,
e.g., Nat. Abortion Federation,
supra, at 465;
Planned Parenthood, supra, at 962.
Some doctors, especially later in the second
trimester, may kill the fetus a day or two before performing the
surgical evacuation. They inject digoxin or potassium chloride into
the fetus, the umbilical cord, or the amniotic fluid. Fetal demise
may cause contractions and make greater dilation possible. Once
dead, moreover, the fetus’ body will soften, and its removal will
be easier. Other doctors refrain from injecting chemical agents,
believing it adds risk with little or no medical benefit.
Carhart, supra, at 907–912;
Nat. Abortion Federation,
supra, at 474–475.
The abortion procedure that was the impetus
for the numerous bans on “partial-birth abortion,” including the
Act, is a variation of this standard D&E. See M. Haskell,
Dilation and Extraction for Late Second Trimester Abortion (1992),
1 Appellant’s App. in No. 04–3379 (CA8), p. 109 (hereinafter
Dilation and Extraction). The medical community has not reached
unanimity on the appropriate name for this D&E variation. It
has been referred to as “intact D&E,” “dilation and extraction”
(D&X), and “intact D&X.”
Nat. Abortion Federation,
supra, at 440, n. 2; see also F. Cunningham et al.,
Williams Obstetrics 243 (22d ed. 2005) (identifying the procedure
as D&X); Danforth’s Obstetrics and Gynecology 567 (J. Scott, R.
Gibbs, B. Karlan, & A. Haney eds. 9th ed. 2003) (identifying
the procedure as intact D&X); M. Paul, E. Lichtenberg, L.
Borgatta, D. Grimes, & P. Stubblefield, A Clinician’s Guide to
Medical and Surgical Abortion 136 (1999) (identifying the procedure
as intact D&E). For discussion purposes this D&E variation
will be referred to as intact D&E. The main difference between
the two procedures is that in intact D&E a doctor extracts the
fetus intact or largely intact with only a few passes. There are no
comprehensive statistics indicating what percentage of all D&Es
are performed in this manner.
Intact D&E, like regular D&E, begins
with dilation of the cervix. Sufficient dilation is essential for
the procedure. To achieve intact extraction some doctors thus may
attempt to dilate the cervix to a greater degree. This approach has
been called “serial” dilation.
Carhart, supra, at 856,
870, 873;
Planned Parenthood, supra, at 965. Doctors who
attempt at the outset to perform intact D&E may dilate for two
full days or use up to 25 osmotic dilators. See,
e.g.,
Dilation and Extraction 110;
Carhart, supra, at 865, 868,
876, 886.
In an intact D&E procedure the doctor
extracts the fetus in a way conducive to pulling out its entire
body, instead of ripping it apart. One doctor, for example,
testified:
“If I know I have good dilation
and I reach in and the fetus starts to come out and I think I can
accomplish it, the abortion with an intact delivery, then I use my
forceps a little bit differently. I don’t close them quite so much,
and I just gently draw the tissue out attempting to have an intact
delivery, if possible.” App. in No. 05–1382, at 74.
Rotating the fetus as it is being pulled decreases
the odds of dismemberment.
Carhart, supra, at 868–869;
App. in No. 05–380, pp. 40–41; 5 Appellant’s App. in No. 04–3379
(CA8), p. 1469. A doctor also “may use forceps to grasp a fetal
part, pull it down, and re-grasp the fetus at a higher
level—sometimes using both his hand and a forceps—to exert traction
to retrieve the fetus intact until the head is lodged in the
[cervix].”
Carhart, 331 F. Supp. 2d, at 886–887.
Intact D&E gained public notoriety when,
in 1992, Dr. Martin Haskell gave a presentation describing his
method of performing the operation. Dilation and Extraction
110–111. In the usual intact D&E the fetus’ head lodges in the
cervix, and dilation is insufficient to allow it to pass. See,
e.g., ibid.; App. in No. 05–380, at 577; App. in
No. 05–1382, at 74, 282. Haskell explained the next step as
follows:
“ ‘At this point, the right-handed surgeon
slides the fingers of the left [hand] along the back of the fetus
and “hooks” the shoulders of the fetus with the index and ring
fingers (palm down).
“ ‘While maintaining this tension, lifting the cervix and
applying traction to the shoulders with the fingers of the left
hand, the surgeon takes a pair of blunt curved Metzenbaum scissors
in the right hand. He carefully advances the tip, curved down,
along the spine and under his middle finger until he feels it
contact the base of the skull under the tip of his middle
finger.
“ ‘[T]he surgeon then forces the scissors into the base of
the skull or into the foramen magnum. Having safely entered the
skull, he spreads the scissors to enlarge the opening.
“ ‘The surgeon removes the scissors and introduces a
suction catheter into this hole and evacuates the skull contents.
With the catheter still in place, he applies traction to the fetus,
removing it completely from the patient.’ ” H. R. Rep.
No. 108–58, p. 3 (2003).
This is an abortion doctor’s
clinical description. Here is another description from a nurse who
witnessed the same method performed on a 26-week fetus and who
testified before the Senate Judiciary Committee:
“ ‘Dr. Haskell went in with
forceps and grabbed the baby’s legs and pulled them down into the
birth canal. Then he delivered the baby’s body and the
arms—everything but the head. The doctor kept the head right inside
the uterus… .
“ ‘The baby’s little fingers were
clasping and unclasping, and his little feet were kicking. Then the
doctor stuck the scissors in the back of his head, and the baby’s
arms jerked out, like a startle reaction, like a flinch, like a
baby does when he thinks he is going to fall.
“ ‘The doctor opened up the scissors,
stuck a high-powered suction tube into the opening, and sucked the
baby’s brains out. Now the baby went completely limp… .
“ ‘He cut the umbilical cord and
delivered the placenta. He threw the baby in a pan, along with the
placenta and the instruments he had just used.’ ”
Ibid.
Dr. Haskell’s approach is not
the only method of killing the fetus once its head lodges in the
cervix, and “the process has evolved” since his presentation.
Planned Parenthood, 320 F. Supp. 2d, at 965. Another
doctor, for example, squeezes the skull after it has been pierced
“so that enough brain tissue exudes to allow the head to pass
through.” App. in No. 05–380, at 41; see also
Carhart,
supra, at 866–867, 874. Still other physicians reach into the
cervix with their forceps and crush the fetus’ skull.
Carhart,
supra, at 858, 881. Others continue to pull the fetus out of
the woman until it disarticulates at the neck, in effect
decapitating it. These doctors then grasp the head with forceps,
crush it, and remove it.
Id., at 864, 878; see also
Planned Parenthood, supra, at 965.
Some doctors performing an intact D&E
attempt to remove the fetus without collapsing the skull. See
Carhart, supra, at 866, 869. Yet one doctor would not
allow delivery of a live fetus younger than 24 weeks because “the
objective of [his] procedure is to perform an abortion,” not a
birth. App. in No. 05–1382, at 408–409. The doctor thus answered in
the affirmative when asked whether he would “hold the fetus’ head
on the internal side of the [cervix] in order to collapse the
skull” and kill the fetus before it is born.
Id., at 409;
see also
Carhart, supra, at 862, 878. Another doctor
testified he crushes a fetus’ skull not only to reduce its size but
also to ensure the fetus is dead before it is removed. For the
staff to have to deal with a fetus that has “some viability to it,
some movement of limbs,” according to this doctor, “[is] always a
difficult situation.” App. in No. 05–380, at 94; see
Carhart,
supra, at 858.
D&E and intact D&E are not the only
second-trimester abortion methods. Doctors also may abort a fetus
through medical induction. The doctor medicates the woman to induce
labor, and contractions occur to deliver the fetus. Induction,
which unlike D&E should occur in a hospital, can last as little
as 6 hours but can take longer than 48. It accounts for about five
percent of second-trimester abortions before 20 weeks of gestation
and 15 percent of those after 20 weeks. Doctors turn to two other
methods of second-trimester abortion, hysterotomy and hysterectomy,
only in emergency situations because they carry increased risk of
complications. In a hysterotomy, as in a cesarean section, the
doctor removes the fetus by making an incision through the abdomen
and uterine wall to gain access to the uterine cavity. A
hysterectomy requires the removal of the entire uterus. These two
procedures represent about .07% of second-trimester abortions.
Nat. Abortion Federation, 330 F. Supp. 2d, at 467;
Planned Parenthood, supra, at 962–963.
B
After Dr. Haskell’s procedure
received public attention, with ensuing and increasing public
concern, bans on “ ‘partial birth abortion’ ”
proliferated. By the time of the
Stenberg decision, about
30 States had enacted bans designed to prohibit the procedure. 530
U. S., at 995–996, and nn. 12–13 (Thomas, J., dissenting); see also
H. R. Rep. No. 108–58, at 4–5. In 1996, Congress also
acted to ban partial-birth abortion. President Clinton vetoed the
congressional legislation, and the Senate failed to override the
veto. Congress approved another bill banning the procedure in 1997,
but President Clinton again vetoed it. In 2003, after this Court’s
decision in
Stenberg, Congress passed the Act at issue
here. H. R. Rep. No. 108–58, at 12–14. On November 5, 2003,
President Bush signed the Act into law. It was to take effect the
following day. 18 U. S. C. §1531(a) (2000 ed., Supp. IV).
The Act responded to
Stenberg in two ways. First, Congress made factual
findings. Congress determined that this Court in
Stenberg
“was required to accept the very questionable findings issued by
the district court judge,” §2(7), 117 Stat. 1202, notes following
18 U. S. C. §1531 (2000 ed., Supp. IV), p. 768, ¶(7)
(Congressional Findings), but that Congress was “not bound to
accept the same factual findings,”
ibid., ¶(8). Congress
found, among other things, that “[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.”
Id., at
767, ¶(1).
Second, and more relevant here, the Act’s
language differs from that of the Nebraska statute struck down in
Stenberg. See 530 U. S., at 921–922 (quoting Neb. Rev.
Stat. Ann. §§28–328(1), 28–326(9) (Supp. 1999)). The operative
provisions of the Act provide in relevant part:
“(a) Any physician who, in or
affecting interstate or foreign commerce, knowingly performs a
partial-birth abortion and thereby kills a human fetus shall be
fined under this title or imprisoned not more than 2 years, or
both. This subsection does not apply to a partial-birth abortion
that is necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, or physical
injury, including a life-endangering physical condition caused by
or arising from the pregnancy itself. This subsection takes effect
1 day after the enactment.
“(b) As used in this section—
“(1) the term ‘partial-birth abortion’ means an abortion in
which the person performing the abortion—
“(A) deliberately and intentionally vaginally delivers a living
fetus 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, for the purpose of performing an
overt act that the person knows will kill the partially delivered
living fetus; and
“(B) performs the overt act, other than completion of delivery,
that kills the partially delivered living fetus; and
“(2) the term ‘physician’ means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery by
the State in which the doctor performs such activity, or any other
individual legally authorized by the State to perform abortions:
Provided, however, That any individual who is not a
physician or not otherwise legally authorized by the State to
perform abortions, but who nevertheless directly performs a
partial-birth abortion, shall be subject to the provisions of this
section.
. . . . .
“(d)(1) 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.
“(2) The findings on that issue are admissible on that issue at
the trial of the defendant. Upon a motion of the defendant, the
court shall delay the beginning of the trial for not more than 30
days to permit such a hearing to take place.
“(e) A woman upon whom a partial-birth abortion is performed may
not be prosecuted under this section, for a conspiracy to violate
this section, or for an offense under section 2, 3, or 4 of this
title based on a violation of this section.” 18 U. S. C. §1531
(2000 ed., Supp. IV).
The Act also includes a provision authorizing civil
actions that is not of relevance here. §1531(c).
C
The District Court in
Carhart concluded the Act was unconstitutional for two
reasons. First, it determined the Act was unconstitutional because
it lacked an exception allowing the procedure where necessary for
the health of the mother. 331 F. Supp. 2d, at 1004–1030.
Second, the District Court found the Act deficient because it
covered not merely intact D&E but also certain other D&Es.
Id., at 1030–1037.
The Court of Appeals for the
Eighth Circuit addressed only the lack of a health exception. 413
F. 3d, at 803–804. The court began its analysis with what it
saw as the appropriate question—“whether ‘substantial medical
authority’ supports the medical necessity of the banned procedure.”
Id., at 796 (quoting
Stenberg, 530 U. S., at
938). This was the proper framework, according to the Court of
Appeals, because “when a lack of consensus exists in the medical
community, the Constitution requires legislatures to err on the
side of protecting women’s health by including a health exception.”
413 F. 3d, at 796. The court rejected the Attorney General’s
attempt to demonstrate changed evidentiary circumstances since
Stenberg and considered itself bound by
Stenberg’s conclusion that a health exception was
required. 413 F. 3d, at 803 (explaining “[t]he record in [the]
case and the record in
Stenberg [were] similar in all
significant respects”). It invalidated the Act.
Ibid.
D
The District Court in Planned
Parenthood concluded the Act was unconstitutional “because it
(1) pose[d] an undue burden on a woman’s ability to choose a second
trimester abortion; (2) [was] unconstitutionally vague; and (3)
require[d] a health exception as set forth by …
Stenberg.”
320 F. Supp. 2d, at 1034–1035.
The Court of Appeals for the
Ninth Circuit agreed. Like the Court of Appeals for the Eighth
Circuit, it concluded the absence of a health exception rendered
the Act unconstitutional. The court interpreted
Stenberg
to require a health exception unless “there is
consensus in the
medical community that the banned procedure is never medically
necessary to preserve the health of women.” 435 F. 3d, at
1173. Even after applying a deferential standard of review to
Congress’ factual findings, the Court of Appeals determined
“substantial disagreement exists in the medical community regarding
whether” the procedures prohibited by the Act are ever necessary to
preserve a woman’s health.
Id., at 1175–1176.
The Court of Appeals concluded further that
the Act placed an undue burden on a woman’s ability to obtain a
second-trimester abortion. The court found the textual differences
between the Act and the Nebraska statute struck down in
Stenberg insufficient to distinguish D&E and intact
D&E. 435 F. 3d, at 1178–1180. As a result, according to
the Court of Appeals, the Act imposed an undue burden because it
prohibited D&E.
Id., at 1180–1181.
Finally, the Court of Appeals found the Act
void for vagueness.
Id., at 1181. Abortion doctors
testified they were uncertain which procedures the Act made
criminal. The court thus concluded the Act did not offer physicians
clear warning of its regulatory reach.
Id., at 1181–1184.
Resting on its understanding of the remedial framework established
by this Court in
Ayotte v.
Planned Parenthood of
Northern New Eng.,
546 U. S. 320, 328–330
(2006), the Court of Appeals held the Act was unconstitutional on
its face and should be permanently enjoined. 435 F. 3d, at
1184–1191.
II
The principles set forth in the
joint opinion in
Planned Parenthood of Southeastern Pa. v.
Casey,
505
U. S. 833 (1992), did not find support from all those who join
the instant opinion. See
id., at 979–1002 (Scalia, J.,
joined by Thomas, J.,
inter alios, concurring in judgment
in part and dissenting in part). Whatever one’s views concerning
the
Casey joint opinion, it is evident a premise central
to its conclusion—that the government has a legitimate and
substantial interest in preserving and promoting fetal life—would
be repudiated were the Court now to affirm the judgments of the
Courts of Appeals.
Casey involved a
challenge to
Roe v.
Wade,
410 U. S. 113 (1973).
The opinion contains this summary:
“It must be stated at the outset
and with clarity that
Roe’s essential holding, the holding
we reaffirm, has three parts. First is a recognition of the right
of the woman to choose to have an abortion before viability and to
obtain it without undue interference from the State. Before
viability, the State’s interests are not strong enough to support a
prohibition of abortion or the imposition of a substantial obstacle
to the woman’s effective right to elect the procedure. Second is a
confirmation of the State’s power to restrict abortions after fetal
viability, if the law contains exceptions for pregnancies which
endanger the woman’s life or health. And third is the principle
that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the
fetus that may become a child. These principles do not contradict
one another; and we adhere to each.” 505 U. S., at 846 (opinion of
the Court).
Though all three holdings are implicated in the
instant cases, it is the third that requires the most extended
discussion; for we must determine whether the Act furthers the
legitimate interest of the Government in protecting the life of the
fetus that may become a child.
To implement its holding,
Casey
rejected both
Roe’s rigid trimester framework and the
interpretation of
Roe that considered all previability
regulations of abortion unwarranted. 505 U. S., at 875–876, 878
(plurality opinion). On this point
Casey overruled the
holdings in two cases because they undervalued the State’s interest
in potential life. See
id., at 881–883 (joint opinion)
(overruling
Thornburgh v.
American College of
Obstetricians and Gynecologists,
476 U. S. 747 (1986) and
Akron v.
Akron Center for Reproductive Health,
Inc.,
462 U. S.
416 (1983)).
We assume the following principles for the
purposes of this opinion. Before viability, a State “may not
prohibit any woman from making the ultimate decision to terminate
her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may
not impose upon this right an undue burden, which exists if a
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.”
Id., at 878. 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.”
Id., at 877.
Casey, in short, struck a
balance. The balance was central to its holding. We now apply its
standard to the cases at bar.
III
We begin with a determination of
the Act’s operation and effect. A straightforward reading of the
Act’s text demonstrates its purpose and the scope of its
provisions: It regulates and proscribes, with exceptions or
qualifications to be discussed, performing the intact D&E
procedure.
Respondents agree the Act
encompasses intact D&E, but they contend its additional reach
is both unclear and excessive. Respondents assert that, at the
least, the Act is void for vagueness because its scope is
indefinite. In the alternative, respondents argue the Act’s text
proscribes all D&Es. Because D&E is the most common
second-trimester abortion method, respondents suggest the Act
imposes an undue burden. In this litigation the Attorney General
does not dispute that the Act would impose an undue burden if it
covered standard D&E.
We conclude that the Act is not void for
vagueness, does not impose an undue burden from any overbreadth,
and is not invalid on its face.
A
The Act punishes “knowingly
perform[ing]” a “partial-birth abortion.” §1531(a) (2000 ed., Supp.
IV). It defines the unlawful abortion in explicit terms.
§1531(b)(1).
First, the person performing the
abortion must “vaginally delive[r] a living fetus.” §1531(b)(1)(A).
The Act does not restrict an abortion procedure involving the
delivery of an expired fetus. The Act, furthermore, is inapplicable
to abortions that do not involve vaginal delivery (for instance,
hysterotomy or hysterectomy). The Act does apply both previability
and postviability because, by common understanding and scientific
terminology, a fetus is a living organism while within the womb,
whether or not it is viable outside the womb. See,
e.g.,
Planned Parenthood, 320 F. Supp. 2d, at 971–972. We
do not understand this point to be contested by the parties.
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.” §1531(b)(1)(A) (2000 ed., Supp. IV). 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
‘landmarks’ ”—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. Brief for
Petitioner in No. 05–380, p. 46.
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.” §1531(b)(1)(B) (2000
ed., Supp. IV). For purposes of criminal liability, the overt act
causing the fetus’ death must be separate from delivery. And the
overt act must occur after the delivery to an anatomical landmark.
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.
Ibid.
Fourth, the Act contains scienter requirements
concerning all the actions involved in the prohibited abortion. To
begin with, the physician must have “deliberately and
intentionally” delivered the fetus to one of the Act’s anatomical
landmarks. §1531(b)(1)(A). If a living fetus is delivered past the
critical point by accident or inadvertence, the Act is
inapplicable. In addition, the fetus must have been delivered “for
the purpose of performing an overt act that the [doctor] knows will
kill [it].”
Ibid. If either intent is absent, no crime has
occurred. This follows from the general principle that where
scienter is required no crime is committed absent the requisite
state of mind. See generally 1 W. LaFave, Substantive Criminal Law
§5.1 (2d ed. 2003) (hereinafter LaFave); 1 C. Torcia, Wharton’s
Criminal Law §27 (15th ed. 1993).
B
Respondents contend the language
described above is indeterminate, and they thus argue the Act is
unconstitutionally vague on its face. “As generally stated, the
void-for-vagueness doctrine requires that a penal statute define
the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.”
Kolender v.
Lawson,
461 U. S. 352, 357
(1983);
Posters ‘N’ Things, Ltd. v.
United
States,
511 U.
S. 513, 525 (1994). The Act satisfies both requirements.
The Act provides doctors “of
ordinary intelligence a reasonable opportunity to know what is
prohibited.”
Grayned v.
City of Rockford,
408 U. S. 104,
108 (1972). Indeed, it sets forth “relatively clear guidelines as
to prohibited conduct” and provides “objective criteria” to
evaluate whether a doctor has performed a prohibited procedure.
Posters ‘N’ Things, supra, at 525–526. Unlike the
statutory language in
Stenberg that prohibited the
delivery of a “ ‘substantial portion’ ” of the
fetus—where a doctor might question how much of the fetus is a
substantial portion—the Act defines the line between potentially
criminal conduct on the one hand and lawful abortion on the other.
Stenberg, 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann.
§28–326(9) (Supp. 1999)). 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.
This conclusion is buttressed by the intent
that must be proved to impose liability. The Court has made clear
that scienter requirements alleviate vagueness concerns.
Posters ‘N’ Things, supra, at 526; see also
Colautti v.
Franklin,
439 U. S. 379, 395
(1979) (“This Court has long recognized that the constitutionality
of a vague statutory standard is closely related to whether that
standard incorporates a requirement of
mens rea”). The Act
requires the doctor deliberately to have delivered the fetus to an
anatomical landmark. §1531(b)(1)(A) (2000 ed., Supp. IV). Because a
doctor performing a D&E will not face criminal liability if he
or she delivers a fetus beyond the prohibited point by mistake, the
Act cannot be described as “a trap for those who act in good
faith.”
Colautti, supra, at 395 (internal quotation marks
omitted).
Respondents likewise have failed to show that
the Act should be invalidated on its face because it encourages
arbitrary or discriminatory enforcement.
Kolender, supra,
at 357. Just as the Act’s anatomical landmarks provide doctors with
objective standards, they also “establish minimal guidelines to
govern law enforcement.”
Smith v.
Goguen,
415 U. S. 566,
574 (1974). The scienter requirements narrow the scope of the Act’s
prohibition and limit prosecutorial discretion. It cannot be said
that the Act “vests virtually complete discretion in the hands of
[law enforcement] to determine whether the [doctor] has satisfied
[its provisions].”
Kolender, supra, at 358 (invalidating a
statute regulating loitering). Respondents’ arguments concerning
arbitrary enforcement, furthermore, are somewhat speculative. This
is a preenforcement challenge, where “no evidence has been, or
could be, introduced to indicate whether the [Act] has been
enforced in a discriminatory manner or with the aim of inhibiting
[constitutionally protected conduct].”
Hoffman Estates v.
Flipside, Hoffman Estates, Inc.,
455 U. S. 489, 503
(1982). The Act is not vague.
C
We next determine whether the Act
imposes an undue burden, as a facial matter, because its
restrictions on second-trimester abortions are too broad. A review
of the statutory text discloses the limits of its reach. 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.
1
The Act prohibits a doctor from
intentionally performing an intact D&E. The dual prohibitions
of the Act, both of which are necessary for criminal liability,
correspond with the steps generally undertaken during this type of
procedure. First, a doctor delivers the fetus until its head lodges
in the cervix, which is usually past the anatomical landmark for a
breech presentation. See 18 U. S. C. §1531(b)(1)(A) (2000 ed.,
Supp. IV). Second, the doctor proceeds to pierce the fetal skull
with scissors or crush it with forceps. This step satisfies the
overt-act requirement because it kills the fetus and is distinct
from delivery. See §1531(b)(1)(B). 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. 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. A
doctor performing a standard D&E procedure can often “tak[e]
about 10–15 ‘passes’ through the uterus to remove the entire
fetus.”
Planned Parenthood, 320 F. Supp. 2d, at 962.
Removing the fetus in this manner does not violate the Act because
the doctor will not have delivered the living fetus to one of the
anatomical landmarks or committed an additional overt act that
kills the fetus after partial delivery. §1531(b)(1) (2000 ed.,
Supp. IV).
A comparison of the Act with the Nebraska
statute struck down in
Stenberg confirms this point. The
statute in
Stenberg prohibited “ ‘deliberately and
intentionally delivering into the vagina a living unborn child, or
a substantial portion thereof, for the purpose of performing a
procedure that the person performing such procedure knows will kill
the unborn child and does kill the unborn child.’ ” 530 U. S.,
at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The
Court concluded that this statute encompassed D&E because
“D&E will often involve a physician pulling a ‘substantial
portion’ of a still living fetus, say, an arm or leg, into the
vagina prior to the death of the fetus.” 530 U. S., at 939. The
Court also rejected the limiting interpretation urged by Nebraska’s
Attorney General that the statute’s reference to a “procedure” that
“ ‘kill[s] the unborn child’ ” was to a distinct
procedure, not to the abortion procedure as a whole.
Id.,
at 943.
Congress, it is apparent, responded to these
concerns because the Act departs in material ways from the statute
in
Stenberg. It adopts the phrase “delivers a living
fetus,” §1531(b)(1)(A) (2000 ed., Supp. IV), instead of
“ ‘delivering . . . a living unborn child, or a substantial
portion thereof,’ ” 530 U. S., at 938 (quoting Neb. Rev. Stat.
Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the
statute in
Stenberg, expresses the usual meaning of
“deliver” when used in connection with “fetus,” namely, extraction
of an entire fetus rather than removal of fetal pieces. See
Stedman’s Medical Dictionary 470 (27th ed. 2000) (defining deliver
as “[t]o assist a woman in childbirth” and “[t]o extract from an
enclosed place, as the fetus from the womb, an object or foreign
body”); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni,
The HarperCollins Illustrated Medical Dictionary 160 (4th ed.
2001); Merriam Webster’s Collegiate Dictionary 306 (10th ed. 1997).
The Act thus displaces the interpretation of “delivering” dictated
by the Nebraska statute’s reference to a “substantial portion” of
the fetus.
Stenberg, supra, at 944 (indicating that the
Nebraska “statute itself specifies that it applies
both to
delivering ‘an intact unborn child’
or ‘a substantial
portion thereof’ ”). In interpreting statutory texts courts
use the ordinary meaning of terms unless context requires a
different result. See,
e.g., 2A N. Singer, Sutherland on
Statutes and Statutory Construction §47:28 (rev. 6th ed. 2000).
Here, unlike in
Stenberg, the language does not require a
departure from the ordinary meaning. D&E does not involve the
delivery of a fetus because it requires the removal of fetal parts
that are ripped from the fetus as they are pulled through the
cervix.
The identification of specific anatomical
landmarks to which the fetus must be partially delivered also
differentiates the Act from the statute at issue in
Stenberg. §1531(b)(1)(A) (2000 ed., Supp. IV). The Court
in
Stenberg interpreted “ ‘substantial
portion’ ” of the fetus to include an arm or a leg. 530 U. S.,
at 939. The Act’s anatomical landmarks, by contrast, clarify that
the removal of a small portion of the fetus is not prohibited. The
landmarks also require the fetus to be delivered so that it is
partially “outside the body of the mother.” §1531(b)(1)(A). To come
within the ambit of the Nebraska statute, on the other hand, a
substantial portion of the fetus only had to be delivered into the
vagina; no part of the fetus had to be outside the body of the
mother before a doctor could face criminal sanctions.
Id.,
at 938–939.
By adding an overt-act requirement Congress
sought further to meet the Court’s objections to the state statute
considered in
Stenberg. Compare 18 U. S. C.
§1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev. Stat. Ann.
§28–326(9) (Supp. 1999). The Act makes the distinction the Nebraska
statute failed to draw (but the Nebraska Attorney General advanced)
by differentiating between the overall partial-birth abortion and
the distinct overt act that kills the fetus. See
Stenberg,
530 U. S., at 943–944. The fatal overt act must occur after
delivery to an anatomical landmark, and it must be something “other
than [the] completion of delivery.” §1531(b)(1)(B). This
distinction matters because, unlike intact D&E, standard
D&E does not involve a delivery followed by a fatal act.
The canon of constitutional avoidance,
finally, extinguishes any lingering doubt as to whether the Act
covers the prototypical D&E procedure. “ ‘[T]he elementary
rule is that every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.’ ”
Edward J. DeBartolo Corp. v.
Florida Gulf Coast
Building & Constr. Trades Council,
485 U. S. 568, 575
(1988) (quoting
Hooper v.
California,
155 U. S. 648, 657
(1895)). It is true this longstanding maxim of statutory
interpretation has, in the past, fallen by the wayside when the
Court confronted a statute regulating abortion. The Court at times
employed an antagonistic “ ‘canon of construction under which
in cases involving abortion, a permissible reading of a statute
[was] to be avoided at all costs.’ ”
Stenberg, supra,
at 977 (Kennedy, J., dissenting) (quoting
Thornburgh, 476
U. S., at 829 (O’Connor, J., dissenting)).
Casey put this
novel statutory approach to rest.
Stenberg, supra, at 977
(Kennedy, J., dissenting).
Stenberg need not be
interpreted to have revived it. We read that decision instead to
stand for the uncontroversial proposition that the canon of
constitutional avoidance does not apply if a statute is not
“genuinely susceptible to two constructions.”
Almendarez-Torres v.
United States,
523 U. S. 224, 238
(1998); see also
Clark v.
Martinez,
543 U. S. 371, 385
(2005). In
Stenberg the Court found the statute covered
D&E. 530 U. S., at 938–945. Here, by contrast, interpreting the
Act so that it does not prohibit standard D&E is the most
reasonable reading and understanding of its terms.
2
Contrary arguments by the
respondents are unavailing. Respondents look to situations that
might arise during D&E, situations not examined in
Stenberg. They contend—relying on the testimony of
numerous abortion doctors—that D&E may result in the delivery
of a living fetus beyond the Act’s anatomical landmarks in a
significant fraction of cases. This is so, respondents say, because
doctors cannot predict the amount the cervix will dilate before the
abortion procedure. It might dilate to a degree that the fetus will
be removed largely intact. To complete the abortion, doctors will
commit an overt act that kills the partially delivered fetus.
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. Brief for
Respondent Planned Parenthood et al. in No. 05–1382,
p. 38.
This reasoning, however, does not
take account of the Act’s intent requirements, which preclude
liability from attaching to an accidental intact D&E. If a
doctor’s intent at the outset is to perform a D&E in which the
fetus would not be delivered to either of the Act’s anatomical
landmarks, but the fetus nonetheless is delivered past one of those
points, the requisite and prohibited scienter is not present. 18 U.
S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in
that situation completes an abortion by performing an intact
D&E, the doctor does not violate the Act. It is true that
intent to cause a result may sometimes be inferred if a person
“knows that that result is practically certain to follow from his
conduct.” 1 LaFave §5.2(a), at 341. Yet abortion doctors intending
at the outset to perform a standard D&E procedure will not know
that a prohibited abortion “is practically certain to follow from”
their conduct.
Ibid. A fetus is only delivered largely
intact in a small fraction of the overall number of D&E
abortions.
Planned Parenthood, 320 F. Supp. 2d, at
965.
The evidence also supports a legislative
determination that an intact delivery is almost always a conscious
choice rather than a happenstance. Doctors, for example, may remove
the fetus in a manner that will increase the chances of an intact
delivery. See,
e.g., App. in No. 05–1382, at 74, 452. And
intact D&E is usually described as involving some manner of
serial dilation. See,
e.g., Dilation and Extraction 110.
Doctors who do not seek to obtain this serial dilation perform an
intact D&E on far fewer occasions. See,
e.g.,
Carhart, 331 F. Supp. 2d, at 857–858 (“In order for
intact removal to occur on a regular basis, Dr. Fitzhugh would have
to dilate his patients with a second round of laminaria”). This
evidence belies any claim that a standard D&E cannot be
performed without intending or foreseeing an intact D&E.
Many doctors who testified on behalf of
respondents, and who objected to the Act, do not perform an intact
D&E by accident. On the contrary, they begin every D&E
abortion with the objective of removing the fetus as intact as
possible. See,
e.g., id., at 869 (“Since Dr. Chasen
believes that the intact D & E is safer than the dismemberment
D & E, Dr. Chasen’s goal is to perform an intact D & E
every time”); see also
id., at 873, 886. This does not
prove, as respondents suggest, that every D&E might violate the
Act and that the Act therefore imposes an undue burden. It
demonstrates only that those doctors who intend to perform a
D&E that would involve delivery of a living fetus to one of the
Act’s anatomical landmarks must adjust their conduct to the law by
not attempting to deliver the fetus to either of those points.
Respondents have not shown that requiring doctors to intend
dismemberment before delivery to an anatomical landmark will
prohibit the vast majority of D&E abortions. The Act, then,
cannot be held invalid on its face on these grounds.
IV
Under the principles accepted as
controlling here, the Act, as we have interpreted it, would be
unconstitutional “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, 505 U. S., at
878 (plurality opinion). The abortions affected by the Act’s
regulations take place both previability and postviability; so the
quoted language and the undue burden analysis it relies upon are
applicable. The question is whether the Act, measured by its text
in this facial attack, imposes a substantial obstacle to late-term,
but previability, abortions. The Act does not on its face impose a
substantial obstacle, and we reject this further facial challenge
to its validity.
A
The Act’s purposes are set forth
in recitals preceding its operative provisions. A description of
the prohibited abortion procedure demonstrates the rationale for
the congressional enactment. The Act proscribes a method of
abortion in which a fetus is killed just inches before completion
of the birth process. Congress stated as follows: “Implicitly
approving such a brutal and inhumane procedure by choosing not to
prohibit it will further coarsen society to the humanity of not
only newborns, but all vulnerable and innocent human life, making
it increasingly difficult to protect such life.” Congressional
Findings (14)(N), in notes following 18 U. S. C. §1531 (2000
ed., Supp. IV), p. 769. The Act expresses respect for the dignity
of human life.
Congress was concerned,
furthermore, with the effects on the medical community and on its
reputation caused by the practice of partial-birth abortion. The
findings in the Act explain:
“Partial-birth abortion … confuses the medical,
legal, and ethical duties of physicians to preserve and promote
life, as the physician acts directly against the physical life of a
child, whom he or she had just delivered, all but the head, out of
the womb, in order to end that life.” Congressional Findings
(14)(J),
ibid.
There can be no doubt the government “has an
interest in protecting the integrity and ethics of the medical
profession.” Washington v.
Glucksberg,
521 U. S. 702, 731
(1997); see also
Barsky v.
Board of Regents of Univ.
of N. Y.,
347
U. S. 442, 451 (1954) (indicating the State has “legitimate
concern for maintaining high standards of professional conduct” in
the practice of medicine). Under our precedents it is clear the
State has a significant role to play in regulating the medical
profession.
Casey reaffirmed these governmental
objectives. The government may use its voice and its regulatory
authority to show its profound respect for the life within the
woman. A central premise of the opinion was that the Court’s
precedents after
Roe had “undervalue[d] the State’s
interest in potential life.” 505 U. S., at 873 (plurality opinion);
see also
id., at 871. The plurality opinion indicated
“[t]he fact that a law which serves a valid purpose, one not
designed to strike at the right itself, has the incidental effect
of making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it.”
Id., at 874.
This was not an idle assertion. The three premises of
Casey must coexist. See
id., at 846 (opinion of
the Court). The third premise, that the State, from the inception
of the pregnancy, maintains its own regulatory interest in
protecting the life of the fetus that may become a child, cannot be
set at naught by interpreting
Casey’s requirement of a
health exception so it becomes tantamount to allowing a doctor to
choose the abortion method he or she might prefer. Where it 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.
The Act’s ban on abortions that involve
partial delivery of a living fetus furthers the Government’s
objectives. No one would dispute that, for many, D&E is a
procedure itself laden with the power to devalue human life.
Congress could nonetheless conclude that the type of abortion
proscribed by the Act requires specific regulation because it
implicates additional ethical and moral concerns that justify a
special prohibition. Congress determined that the abortion methods
it proscribed had a “disturbing similarity to the killing of a
newborn infant,” Congressional Findings (14)(L), in notes following
18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it
was concerned with “draw[ing] a bright line that clearly
distinguishes abortion and infanticide.” Congressional Findings
(14)(G),
ibid. The Court has in the past confirmed the
validity of drawing boundaries to prevent certain practices that
extinguish life and are close to actions that are condemned.
Glucksberg found reasonable the State’s “fear that
permitting assisted suicide will start it down the path to
voluntary and perhaps even involuntary euthanasia.” 521 U. S., at
732–735, and n. 23.
Respect for human life finds an ultimate
expression in the bond of love the mother has for her child. The
Act recognizes this reality as well. Whether to have an abortion
requires a difficult and painful moral decision.
Casey,
supra, at 852–853 (opinion of the Court). While we find no
reliable data to measure the phenomenon, it seems unexceptionable
to conclude some women come to regret their choice to abort the
infant life they once created and sustained. See Brief for Sandra
Cano et al. as
Amici Curiae in No. 05–380, pp. 22–24.
Severe depression and loss of esteem can follow. See
ibid.
In a decision so fraught with emotional
consequence some doctors may prefer not to disclose precise details
of the means that will be used, confining themselves to the
required statement of risks the procedure entails. From one
standpoint this ought not to be surprising. Any number of patients
facing imminent surgical procedures would prefer not to hear all
details, lest the usual anxiety preceding invasive medical
procedures become the more intense. This is likely the case with
the abortion procedures here in issue. See,
e.g., Nat.
Abortion Federation, 330 F. Supp. 2d, at 466, n. 22
(“Most of [the plaintiffs’] experts acknowledged that they do not
describe to their patients what [the D&E and intact D&E]
procedures entail in clear and precise terms”); see also
id., at 479.
It is, however, precisely this lack of
information concerning the way in which the fetus will be killed
that is of legitimate concern to the State.
Casey, supra,
at 873 (plurality opinion) (“States are free to enact laws to
provide a reasonable framework for a woman to make a decision that
has such profound and lasting meaning”). The State has an interest
in ensuring so grave a choice is well informed. It is self-evident
that a mother who comes to regret her choice to abort must struggle
with grief more anguished and sorrow more profound when she learns,
only after the event, what she once did not know: that she allowed
a doctor to pierce the skull and vacuum the fast-developing brain
of her unborn child, a child assuming the human form.
It is a reasonable inference that a necessary
effect of the regulation and the knowledge it conveys will be to
encourage some women to carry the infant to full term, thus
reducing the absolute number of late-term abortions. The medical
profession, furthermore, may find different and less shocking
methods to abort the fetus in the second trimester, thereby
accommodating legislative demand. The State’s interest in respect
for life is advanced by the dialogue that better informs the
political and legal systems, the medical profession, expectant
mothers, and society as a whole of the consequences that follow
from a decision to elect a late-term abortion.
It is objected that the standard D&E is in
some respects as brutal, if not more, than the intact D&E, so
that the legislation accomplishes little. What we have already
said, however, shows ample justification for the regulation.
Partial-birth abortion, as defined by the Act, differs from a
standard D&E because the former occurs when the fetus is
partially outside the mother to the point of one of the Act’s
anatomical landmarks. It was reasonable for Congress to think that
partial-birth abortion, more than standard D&E, “undermines the
public’s perception of the appropriate role of a physician during
the delivery process, and perverts a process during which life is
brought into the world.” Congressional Findings (14)(K), in notes
following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769.
There would be a flaw in this Court’s logic, and an irony in its
jurisprudence, were we first to conclude a ban on both D&E and
intact D&E was overbroad and then to say it is irrational to
ban only intact D&E because that does not proscribe both
procedures. In sum, we reject the contention that the congressional
purpose of the Act was “to place a substantial obstacle in the path
of a woman seeking an abortion.” 505 U. S., at 878 (plurality
opinion).
B
The Act’s furtherance of
legitimate government interests bears upon, but does not resolve,
the next question: 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.’ ”
Ayotte, 546 U. S., at
327–328 (quoting
Casey, supra, at 879 (plurality
opinion)). The prohibition in the Act would be unconstitutional,
under precedents we here assume to be controlling, if it
“subject[ed] [women] to significant health risks.”
Ayotte,
supra, at 328; see also
Casey, supra, at 880 (opinion
of the Court). In
Ayotte the parties agreed a health
exception to the challenged parental-involvement statute was
necessary “to avert serious and often irreversible damage to [a
pregnant minor’s] health.” 546 U. S., at 328. Here, by contrast,
whether the Act creates significant health risks for women has been
a contested factual question. The evidence presented in the trial
courts and before Congress demonstrates both sides have medical
support for their position.
Respondents presented evidence
that intact D&E may be the safest method of abortion, for
reasons similar to those adduced in
Stenberg. See 530 U.
S., at 932. Abortion doctors testified, for example, that intact
D&E decreases the risk of cervical laceration or uterine
perforation because it requires fewer passes into the uterus with
surgical instruments and does not require the removal of bony
fragments of the dismembered fetus, fragments that may be sharp.
Respondents also presented evidence that intact D&E was safer
both because it reduces the risks that fetal parts will remain in
the uterus and because it takes less time to complete. Respondents,
in addition, proffered evidence that intact D&E was safer for
women with certain medical conditions or women with fetuses that
had certain anomalies. See,
e.g., Carhart, 331
F. Supp. 2d, at 923–929;
Nat. Abortion Federation,
supra, at 470–474;
Planned Parenthood, 320
F. Supp. 2d, at 982–983.
These contentions were contradicted by other
doctors who testified in the District Courts and before Congress.
They concluded that the alleged health advantages were based on
speculation without scientific studies to support them. They
considered D&E always to be a safe alternative. See,
e.g., Carhart, supra, at 930–940;
Nat.
Abortion Federation, 330 F. Supp. 2d, at 470–474;
Planned Parenthood, 320 F. Supp. 2d, at 983.
There is documented medical disagreement
whether the Act’s prohibition would ever impose significant health
risks on women. See,
e.g., id., at 1033 (“[T]here
continues to be a division of opinion among highly qualified
experts regarding the necessity or safety of intact D & E”);
see also
Nat. Abortion Federation, supra, at 482. The
three District Courts that considered the Act’s constitutionality
appeared to be in some disagreement on this central factual
question. The District Court for the District of Nebraska concluded
“the banned procedure is, sometimes, the safest abortion procedure
to preserve the health of women.”
Carhart, supra, at 1017.
The District Court for the Northern District of California reached
a similar conclusion.
Planned Parenthood, supra, at 1002
(finding intact D&E was “under certain circumstances …
significantly safer than D & E by disarticulation”). The
District Court for the Southern District of New York was more
skeptical of the purported health benefits of intact D&E. It
found the Attorney General’s “expert witnesses reasonably and
effectively refuted [the plaintiffs’] proffered bases for the
opinion that [intact D&E] has safety advantages over other
second-trimester abortion procedures.”
Nat. Abortion
Federation, 330 F. Supp. 2d, at 479. In addition it did
“not believe that many of [the plaintiffs’] purported reasons for
why [intact D&E] is medically necessary [were] credible; rather
[it found them to be] theoretical or false.”
Id., at 480.
The court nonetheless invalidated the Act because it determined “a
significant body of medical opinion … holds that D & E has
safety advantages over induction and that [intact D&E] has some
safety advantages (however hypothetical and unsubstantiated by
scientific evidence) over D & E for some women in some
circumstances.”
Ibid.
The question becomes whether the Act can stand
when this medical uncertainty persists. The Court’s precedents
instruct that the Act can survive this facial attack. The Court has
given state and federal legislatures wide discretion to pass
legislation in areas where there is medical and scientific
uncertainty. See
Kansas v.
Hendricks,
521 U. S. 346, 360, n. 3
(1997);
Jones v.
United States,
463 U. S. 354, 364–365,
n. 13, 370 (1983);
Lambert v.
Yellowley,
272 U. S. 581, 597
(1926);
Collins v.
Texas,
223 U. S. 288, 297–298
(1912);
Jacobson v.
Massachusetts,
197 U. S. 11, 30–31
(1905); see also
Stenberg, supra, at 969–972 (Kennedy, J.,
dissenting);
Marshall v.
United States,
414 U. S. 417, 427
(1974) (“When Congress undertakes to act in areas fraught with
medical and scientific uncertainties, legislative options must be
especially broad”).
This traditional rule is consistent with
Casey, which confirms the State’s interest in promoting
respect for human life at all stages in the pregnancy. Physicians
are not entitled to ignore regulations that direct them to use
reasonable alternative procedures. 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. In
Casey the controlling opinion held
an informed-consent requirement in the abortion context was “no
different from a requirement that a doctor give certain specific
information about any medical procedure.” 505 U. S., at 884 (joint
opinion). The opinion stated “the doctor-patient relation here is
entitled to the same solicitude it receives in other contexts.”
Ibid.; see also
Webster v.
Reproductive
Health Services,
492 U. S. 490, 518–519
(1989) (plurality opinion) (criticizing
Roe’s trimester
framework because,
inter alia, it “left this Court to
serve as the country’s
ex officio medical board with
powers to approve or disapprove medical and operative practices and
standards throughout the United States” (internal quotation marks
omitted));
Mazurek v.
Armstrong,
520 U. S. 968, 973
(1997)
(per curiam) (upholding a restriction on the
performance of abortions to licensed physicians despite the
respondents’ contention “all health evidence contradicts the claim
that there is any health basis for the law” (internal quotation
marks omitted)).
Medical uncertainty does not foreclose the
exercise of legislative power in the abortion context any more than
it does in other contexts. See
Hendricks, supra, at 360,
n. 3. The medical uncertainty over whether the Act’s
prohibition creates significant health risks provides a sufficient
basis to conclude in this facial attack that the Act does not
impose an undue burden.
The conclusion that the Act does not impose an
undue burden is supported by other considerations. Alternatives are
available to the prohibited procedure. As we have noted, the Act
does not proscribe D&E. One District Court found D&E to
have extremely low rates of medical complications.
Planned
Parenthood, supra, at 1000. Another indicated D&E was
“generally the safest method of abortion during the second
trimester.”
Carhart, 331 F. Supp. 2d, at 1031; see
also
Nat. Abortion Federation, supra, at 467–468
(explaining that “[e]xperts testifying for both sides” agreed
D&E was safe). In addition the Act’s prohibition only applies
to the delivery of “a living fetus.” 18 U. S. C.
§1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E
procedure is truly necessary in some circumstances, it appears
likely an injection that kills the fetus is an alternative under
the Act that allows the doctor to perform the procedure.
The instant cases, then, are different from
Planned Parenthood of Central Mo. v.
Danforth,
428 U. S. 52,
77–79 (1976), in which the Court invalidated a ban on saline
amniocentesis, the then-dominant second-trimester abortion method.
The Court found the ban in
Danforth to be “an unreasonable
or arbitrary regulation designed to inhibit, and having the effect
of inhibiting, the vast majority of abortions after the first 12
weeks.”
Id., at 79. Here the Act allows, among other
means, a commonly used and generally accepted method, so it does
not construct a substantial obstacle to the abortion right.
In reaching the conclusion the Act does not
require a health exception we reject certain arguments made by the
parties on both sides of these cases. On the one hand, the Attorney
General urges us to uphold the Act on the basis of the
congressional findings alone. Brief for Petitioner in No. 05–380,
at 23. Although we review congressional factfinding under a
deferential standard, we do not in the circumstances here place
dispositive weight on Congress’ findings. The Court retains an
independent constitutional duty to review factual findings where
constitutional rights are at stake. See
Crowell v.
Benson,
285
U. S. 22, 60 (1932) (“In cases brought to enforce
constitutional rights, the judicial power of the United States
necessarily extends to the independent determination of all
questions, both of fact and law, necessary to the performance of
that supreme function”).
As respondents have noted, and the District
Courts recognized, some recitations in the Act are factually
incorrect. See
Nat. Abortion Federation, 330 F. Supp.
2d, at 482, 488–491. Whether or not accurate at the time, some of
the important findings have been superseded. Two examples suffice.
Congress determined no medical schools provide instruction on the
prohibited procedure. Congressional Findings (14)(B), in notes
following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The
testimony in the District Courts, however, demonstrated intact
D&E is taught at medical schools.
Nat. Abortion Federation,
supra, at 490;
Planned Parenthood, 320 F. Supp.
2d, at 1029. Congress also found there existed a medical consensus
that the prohibited procedure is never medically necessary.
Congressional Findings (1), in notes following 18 U. S. C.
§1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the
District Courts contradicts that conclusion. See,
e.g.,
Carhart, supra, at 1012–1015;
Nat. Abortion
Federation, supra, at 488–489;
Planned Parenthood,
supra, at 1025–1026. Uncritical deference to Congress’ factual
findings in these cases is inappropriate.
On the other hand, relying on the Court’s
opinion in
Stenberg, respondents contend that an abortion
regulation must contain a health exception “if ‘substantial medical
authority supports the proposition that banning a particular
procedure could endanger women’s health.’ ” Brief for
Respondents in No. 05–380, p. 19 (quoting 530 U. S., at 938); see
also Brief for Respondent Planned Parenthood et al. in No.
05–1382, at 12 (same). As illustrated by respondents’ arguments and
the decisions of the Courts of Appeals,
Stenberg has been
interpreted to leave no margin of error for legislatures to act in
the face of medical uncertainty.
Carhart, 413 F. 3d,
at 796;
Planned Parenthood, 435 F. 3d, at 1173; see
also
Nat. Abortion Federation, 437 F. 3d, at 296
(Walker, C. J., concurring) (explaining the standard under
Stenberg “is a virtually insurmountable evidentiary
hurdle”).
A zero tolerance policy would strike down
legitimate abortion regulations, like the present one, if some part
of the medical community were disinclined to follow the
proscription. This is too exacting a standard to impose on the
legislative power, exercised in this instance under the Commerce
Clause, to regulate the medical profession. Considerations of
marginal safety, including the balance of risks, are within the
legislative competence when the regulation is rational and in
pursuit of legitimate ends. When standard medical options are
available, mere convenience does not suffice to displace them; and
if some procedures have different risks than others, it does not
follow that the State is altogether barred from imposing reasonable
regulations. The Act is not invalid on its face where there is
uncertainty over whether the barred procedure is ever necessary to
preserve a woman’s health, given the availability of other abortion
procedures that are considered to be safe alternatives.
V
The considerations we have
discussed support our further determination that these facial
attacks should not have been entertained in the first instance. In
these circumstances the proper means to consider exceptions is by
as-applied challenge. The Government has acknowledged that
preenforcement, as-applied challenges to the Act can be maintained.
Tr. of Oral Arg. in No. 05–380, pp. 21–23. This is the proper
manner to protect the health of the woman if it can be shown that
in discrete and well-defined instances a particular condition has
or is likely to occur in which the procedure prohibited by the Act
must be used. In an as-applied challenge the nature of the medical
risk can be better quantified and balanced than in a facial
attack.
The latitude given facial
challenges in the First Amendment context is inapplicable here.
Broad challenges of this type impose “a heavy burden” upon the
parties maintaining the suit.
Rust v.
Sullivan,
500 U. S. 173,
183 (1991). What that burden consists of in the specific context of
abortion statutes has been a subject of some question. Compare
Ohio v.
Akron Center for Reproductive Health,
497 U. S. 502,
514 (1990) (“[B]ecause appellees are making a facial challenge to a
statute, they must show that no set of circumstances exists under
which the Act would be valid” (internal quotation marks omitted)),
with
Casey, 505 U. S., at 895 (opinion of the Court)
(indicating a spousal-notification statute would impose an undue
burden “in a large fraction of the cases in which [it] is relevant”
and holding the statutory provision facially invalid). See also
Janklow v.
Planned Parenthood, Sioux Falls
Clinic,
517 U.
S. 1174 (1996). We need not resolve that debate.
As the previous sections of this opinion
explain, respondents have not demonstrated that the Act would be
unconstitutional in a large fraction of relevant cases.
Casey,
supra, at 895 (opinion of the Court). We note that the statute
here applies to all instances in which the doctor proposes to use
the prohibited procedure, not merely those in which the woman
suffers from medical complications. It is neither our obligation
nor within our traditional institutional role to resolve questions
of constitutionality with respect to each potential situation that
might develop. “[I]t would indeed be undesirable for this Court to
consider every conceivable situation which might possibly arise in
the application of complex and comprehensive legislation.”
United States v.
Raines,
362 U. S. 17, 21 (1960)
(internal quotation marks omitted). For this reason, “[a]s-applied
challenges are the basic building blocks of constitutional
adjudication.” Fallon, As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).
The Act is open to a proper as-applied
challenge in a discrete case. Cf.
Wisconsin Right to Life,
Inc. v.
Federal Election Comm’n,
546 U. S. 410, 411–412
(2006)
(per curiam). No as-applied challenge need be
brought if the prohibition in the Act threatens a woman’s life
because the Act already contains a life exception. 18 U. S. C.
§1531(a) (2000 ed., Supp. IV).
* * *
Respondents have not demonstrated
that the Act, as a facial matter, is void for vagueness, or that it
imposes an undue burden on a woman’s right to abortion based on its
overbreadth or lack of a health exception. For these reasons the
judgments of the Courts of Appeals for the Eighth and Ninth
Circuits are reversed.
It is so ordered.
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