Zelophehad’s Daughters

After Gonzales v. Carhart

Posted by Guest

This guest post comes to us from frequent ZD commenter and blogging veteran ECS.

Much of the publicity surrounding the U.S. Supreme Court’s recent abortion decision has died down. The Court’s reasoning in Gonzales v. Carhart, however, deserves a closer look. Whether you believe a woman has a right to terminate her pregnancy is not the focus of this post. This post’s focus is on the problematic reasoning in the Supreme Court’s decision in Gonzales, that, among other things, questions the capacity of a woman to give informed consent to undergo a horrifying, yet perhaps necessary, abortion procedure.

Therefore, please do not write polemics in the comments about why abortion is an evil practice or why unfettered reproductive rights are indelibly written into the U.S. Constitution. Comments discussing the Court’s reasoning are welcome, especially well-informed comments. Check out the links and citations for more information about this issue.

1. No Health Exception: While the U.S. Supreme Court has ruled that restrictions on abortion must include an exception for a woman’s health, this law does not include one. Doctors agree that this abortion procedure is performed extremely rarely and is sometimes the most appropriate procedure to protect a woman’s health. (See p. 25 and p.35 of Gonzales). The LDS Church officially recognizes that abortion may be necessary to preserve the health of the mother or “when the fetus is known by competent medical authority to have severe defects that will not allow the baby to survive beyond birth.”

2. No Guidelines to Save A Woman’s Life: Although the law allows doctors to perform the outlawed abortion procedure to save a woman’s life, the Court does not give clear guidelines for when a doctor may legally qualify for the exception to use the procedure to save the life of the mother. If, after the doctor performs the procedure, a court deems the procedure was unnecessary to save the life of the mother, the doctor may be prosecuted under the law. (See p. 13 of Gonzales). Thus, the Court accepts legislative reasoning that the procedure is never “medically necessary”, even though the statute itself recognizes that the procedure may be necessary to save the life of the mother. (See p. 21 and 28 of Gonzales). Consequently, women who need the procedure will likely be unable to find doctors willing to risk their medical licenses to perform it.

3. Women Are Incapable of Giving Informed Consent: The Court states that women are incapable of giving informed consent to choose an abortion, even though late-term abortions are rarely performed, and performed only after an agonizing decision that terminating the pregnancy is necessary. (See p. 24 and p. 38 of Gonzales). In the majority opinion, the Court asserts that women inevitably regret their decision to abort, yet the Court does not compare these regrets to the detrimental psychological and physical effects of, say, carrying a child with severe deformities to term who is certain to die soon after birth. (See p. 23 of Gonzales).

4. Women Who Are Harmed Must Sue Later: Finally, although the Court fully recognizes the harm women may suffer because of its decision, the Court states that women must first suffer harm, and then challenge the law in court after the fact. (See p. 29 and p. 41 of Gonzales).

There is a wide spectrum of political and moral beliefs on the issue of abortion. Regardless, the U.S. Supreme Court’s decision in Gonzales v. Carhart is problematic because it does not protect the health of the mother, yet rules prematurely in the face of conflicting medical evidence to determine that this abortion procedure is never medically necessary. It is important to note that Gonzales does not prevent late-term abortions. It prevents doctors from performing an abortion procedure that may be necessary to preserve a woman’s health. As a result, women facing the tragic circumstance of carrying a child who has no chance of survival outside the womb will now be forced to endanger their health to undergo procedures more dangerous. (See p. 35 of Gonzales).

The majority opinion anticipates that women will be harmed by its decision, but prefers to wait to address that harm instead of preventing it from occurring in the first place. (See p. 29 and 40-41 of Gonzales) When the Court revisits Gonzales, it should at least create an exception for a woman’s health and dispense with the rhetoric that women are incapable of making difficult choices to protect their own health and safety.

31 Responses to “After Gonzales v. Carhart”

  1. 1.

    I think we all should be very disturbed about government intrustion into personal medical decisionmaking, especially in so arbitrary a manner and on such tenuous factual findings. It’s abortion now, but who knows what’s next– vasectomy? Circumcision? IVF? Organ donation?

  2. 2.

    When the Court revisits Gonzales, it should at least create an exception for a woman’s health . . .

    Can the court “create” an exception for the mother’s health? I think I read something to the effect that since this was a “facial” challenge, the only thing the court could do is answer ‘yes’ or ‘no’ to the question of whether the law is entirely unconstitutional. The ruling said, in effect, that no, it’s not entirely unconstitutional, but there may be circumstances in which enforcement would be unconstitutional. The majority opinion went so far as to invite further, non-facial, challenges so that such circumstances can be determined.

    I’m not well enough versed in constitutional law to have an opinion as to whether or not this is a good way of going about clarifying what restrictions the court will allow legislatures to make. I do welcome reasonable restrictions on abortion, though.

  3. 3.

    Here (free registration required) is the TNR article I read (by an abortion rights supporter) that talked about how the opinion invites further challenges and how this change in approach by the court might not be a bad thing, from his perspective.

  4. 4.

    Tom – good point. The Court can’t _create_ a health exception in the statute, because, as we all know, the Court has no specific legislative power :) What the Court can (should) do is invalidate the law for not providing a health exception. Seven years ago in Stenberg, the Supreme Court struck down the Nebraska partial birth abortion ban because the statute did not provide for a health exception. Stenberg v. Carhart, 530 U.S. 914 (2000).

    The facial and as-applied challenges aren’t as intuitive or straightforward as the majority implies (i.e., answering yes or no), however, as Justice Ginsburg states in her dissenting opinion referring to Stenberg:

    “This holding is perplexing given that, in materially identical circumstances, we held that a statute lacking a health exception was unconstitutional on its face”.

    p.40

    z – thanks for your comment. This is indeed a problematic decision, given the medical evidence (and the Court’s paternalistic reasoning).

  5. 5.

    Tom – thanks for linking to the TNR article. It gives a nice overview of the differences between a “facial” vs. “as applied” challenge. Even though the author states that the partial birth abortion ban is “uncommonly stupid”, he doesn’t seem at all concerned with the prospect that women will be immediately harmed by the Gonzales decision. It takes years for a case to wend its way up to the U.S. Supreme Court, which is why Justice Ginsburg is so emphatic in her dissent:

    “It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.” (Ginsburg’s own emphasis, p. 40)

  6. 6.

    What’s the medical evidence? Is there evidence that the specific banned procedure is necessary under some circumstances.

  7. 7.

    Tom – this is the medical evidence from the <em>Stenberg </em>opinion the U.S. Supreme Court found persuasive 7 years ago (530 U.S. at 932):

    Nebraska responds that the law does not require a health exception unless there is a need for such an exception. And here there is no such need, it says. It argues that “safe alternatives remain available” and “a ban on partial-birth abortion/D & X would create no risk to the health of women.” Brief for Petitioners 29, 40. The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart. The State fails to demonstrate that banning D & X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D & X would be the safest procedure.

    We shall reiterate in summary form the relevant findings and evidence. On the basis of medical testimony the District Court concluded that “Carhart’s D & X procedure is … safer tha[n] the D & E and other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Dr. Carhart.” 11 F.Supp.2d, at 1126. It found that the D & X procedure permits the fetus to pass through the cervix with a minimum of instrumentation. Ibid. It thereby “reduces operating time, blood loss and risk of infection; reduces complications from bony fragments; reduces instrument-inflicted damage to the uterus and cervix; prevents the most common causes of maternal mortality (DIC and amniotic fluid embolus); and eliminates the possibility of ‘horrible complications’ arising from retained fetal parts.” Ibid.

    The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D & X ” ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’ “ Id., at 1105, n. 10 (quoting ACOG Statement, App. 600-601) (but see an important qualification, infra, at 2610). With one exception, the federal trial courts that have heard expert evidence on the matter have reached similar factual conclusions.

  8. 8.

    ECS wrote

    “This post’s focus is on the problematic reasoning in the Supreme Court’s decision in Gonzales, that, among other things, questions the capacity of a woman to give informed consent…

    …In the majority opinion, the Court asserts that women inevitably regret their decision to abort”

    My personal experience with abortion suggests that “informed consent” when you are young lacks the wisdom and experience of age.

    I certainly regret my decision.

  9. 9.

    ECS, thanks for gracing our blog with your legal expertise!

    I’ll confess what’s probably already obvious: I know almost nothing about the law (kind of shocking that I’m still hanging out on the Bloggernacle making all kinds of wild assertions with all these fine legal minds whizzing about). But, that duly admitted, I’ll plunge right in. What I find most disturbing about this decision is the assertion that women are incapable of giving informed consent to this particular procedure.

    What does it mean to declare a procedure so devastating that a person cannot informedly consent to it? (I’m very curious: is there any kind of history of ruling other procedures “unconsentable”?) It strikes me as dubious. If I can’t give informed consent to undergo a particular procedure that profoundly affects my own life–because if I think I want to I must be wrong–why is the court so well informed that they can make that determination on my behalf?

    Hasn’t the court pre-emptively determined that any consent is, by definition, uninformed–that no one who really knew the facts could come to a decision to undergo it? How can they know that? (And how does this differ in principle from, say, a ruling that anyone who would want to join the Mormon Church must be making an uninformed decision because no one who really knew all the facts would want to be baptized?)

  10. 10.

    “I think we all should be very disturbed about government intrustion into personal medical decisionmaking”

    Of course it’s not just abortion. There are limits on various drugs that doctors can use. (i.e. medical marijuana) Doctor’s prescriptions of pain killers is carefully examined. The issue of a right to death is huge. The fact of life is that the government is and has been for decades part of regulating medical practice. Exactly why abortion would be different isn’t at all clear to me.

  11. 11.

    It’s disturbing because it’s a big change from their opinion in the Nebraska case a few years back, so it might signal changes in other areas too. Who really knows what will result, but it indicates a turn towards more government regulation and less personal choice.

  12. 12.

    Like Eve (no relation, btw) I don’t have much of an understanding of the laws being discussed. I don’t understand why anyone would object to this ruling. As I understand, it is a ban on a particular kind of abortion not a ban on all abortions. I am unaware of why a partial-birth abortion would be medically necessary or why, if it were medically necessary to end a late-term pregnancy, partial-birth abortion would have to be the solution. There are other ways. I read about some of them in a link from FHM talking about the forced abortions in China, some of which were performed days before the child was due. (Also, preemies are living at earlier and earlier stages so perhaps there’s a way to end the pregnancy early for the sake of the mother without necessarily causing the death of the baby.)

    Would someone please explain this for me?

  13. 13.

    It’s disturbing because of the reason the court gives: that women aren’t capable of making this choice. Even though sometimes it’s safer. And it’s just so pointless– why require women to compromise their health just so a fetus can be killed in a slightly different way? It still ends up dead so what’s the difference?

  14. 14.

    Eve – It’s great to be here! Thanks for having me. The issue of informed consent is fairly straightforward in most medical situations (i.e., a doctor must disclose significant risks to the patient before the patient can give consent to the procedure), but informed consent becomes more controversial in the abortion context. For example, in a few states, a doctor is required by law to tell a woman that having an abortion will increase her risk of breast cancer, even though studies show there is no link between breast cancer and abortion.

    Other states require doctors to discuss information with patients that do not fall into the traditional category of a medical “risk”. For instance, South Carolina has passed legislation requiring a woman to view an ultrasound of the fetus before consenting, and Mississippi passed legislation requiring a woman to listen to the fetal heart beat and view an ultrasound as a requirement of informed consent.

    Off the top of my head, I’m not aware of any medical procedures that courts have declared “unconsentable”. Assisted suicide laws, for example, have been invalidated not because a person can’t give informed consent to be killed, but because assisted suicide is dangerously close to murder, and disabled and terminally ill people would be encouraged to commit suicide if a legal option were available.

    I liked your baptism example because it sets up the problems with informed consent in this context nicely. For example, Justice Kennedy said in the Carhart opinion that women would not be able to tolerate listening to the details of the abortion procedure, and therefore would be unable to give the appropriately informed consent. In your baptism example, however, the investigator knows all the facts about the Church and the baptismal covenants, but still is prevented from joining the Church. Justice Kennedy’s reasoning is similar to a Church policy that disallows baptism for investigators with mental impairments, because these investigators would be incapable of consenting to the baptismal covenants.

    Justice Ginsburg responds to Justice Kennedy and answers your final question about how can the Court assume “that no one who really knew the facts could come to a decision to undergo it” in her dissenting opinion:

    Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. (internal citations omitted)

  15. 15.

    Clark, your examples of government regulation are easily distinguishable from this context. The statute at issue in Carhart is similar to a government ban on penicillin for a patient suffering from an infection, or a ban on life-saving drugs for a patient suffering from cancer.

    The question is not whether the government should be allowed to regulate medical practice, but whether the government should be allowed to prohibit an abortion procedure that medical evidence shows is necessary in some cases to preserve a woman’s health.

  16. 16.

    PDOE, these are important questions you’re asking. There is medical evidence showing that the abortion procedure at issue here is preferable to other abortion procedures. I cited to some of this evidence in Comment #7 above.

    If you’re interested in learning more, you can read the full opinion in Stenberg. You can find lots of discussion on the internet, and the wikipedia stub I linked to is very informative, but if you’re interested in learning about the specific medical evidence the Court used to justify its conflicting decisions, you should probably read the Stenberg and Carhart opinions themselves.

  17. 17.

    Z #13 – that’s the question many people are asking after this opinion.

    [Graphic description to follow].

    A legal alternative to the abortion procedure described in Carhart is to kill the fetus while the fetus is still inside the mother’s womb, to dismember the fetus, and then to pull the parts of the fetus out of the woman’s cervix one by one. You can see why this method would be more dangerous to the intact D&E method outlawed by Carhart, because intact D&E:

    “reduces operating time, blood loss and risk of infection; reduces complications from bony fragments; reduces instrument-inflicted damage to the uterus and cervix; prevents the most common causes of maternal mortality (DIC and amniotic fluid embolus); and eliminates the possibility of ‘horrible complications’ arising from retained fetal parts.”

    (See Comment #7 for full quote and cite)

  18. 18.

    ECS: thank you for clarifying this for me.

  19. 19.

    I definitely agree that Carhart signals a likely departure from Casey. While I think this is extremely good news from a constitutional rights perspective, I do think it highly inconsistent with Court’s holding in the Nebraska case.

    As harsh as it sounds, I actually don’t have any legal problem with women being harmed before being able to challenge the partial birth abortion ban. That’s consistent with basic standing principles, and it’s definitely not a case where the court needs to make an exception like in Roe.

  20. 20.

    Peter, do you think an increased risk is a harm? We’re all harmed because we now face the risk of needing a certain procedure and not being able to get it.

  21. 21.

    ECS: “Assisted suicide laws, for example, have been invalidated . . . because assisted suicide is dangerously close to murder . . .”

    I don’t see this in the Washington v. Glucksberg Wikipedia article you linked to. Have courts actually upheld bans on assisted suicide because it is a lot like murder? If so, that would be interesting because to many people, abortion is dangerously close to murder. In some cases, like post-viability partial birth abortion, the distance between abortion and infanticide can literally be measured in inches.

  22. 22.

    I mean “infanticide” according to the law, not according to an absolute standard.

  23. 23.

    Tom-

    You’ll need to read the entire opinion to get the specific language – I think it’s linked in the wikipedia article – but here it is:

    Washington’s assisted suicide ban implicates a number of state interests. First, Washington has an “unqualified interest in the preservation of human life.” Cruzan, 497 U. S., at 282. The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest.

    Whether partial birth abortion is or is not infanticide is a crucial (and cruel) debate, but one which I was hoping to avoid discussing specifically in this thread. I think it’s fairly obvious from the Court’s language that the majority believes that Carhart’s method of partial birth abortion is infanticide. The Court, however, did not rest its reasoning on this point. Instead, the Court overruled a decision it made on the same evidence seven years ago to determine that (1) the procedure was never medically necessary, even in the face of evidence to the contrary, and (2) women were incapable of consenting to the procedure, even if it were necessary to protect her health.

  24. 24.

    Peter-

    The problem with Carhart _is_ that its decision and reasoning is completely inconsistent with Stenberg’s facial challenge. I’m glad, I suppose, that you personally don’t see a problem with women being harmed before they are allowed to sue, but I fail to see how upholding an abortion law with no health exception is “extremely good news” from a legal perspective. From a political/moral perspective, yes, but a constitutional perspective? Why don’t you see an exception here akin to Roe?

  25. 25.

    P.S. Thanks to all of you for the comments so far, which have been respectful and informed. I know it’s probably an irrational expectation in a thread about abortion that the conversation be reasonable, but I do hope that we can continue to keep the conversation civil and (generally) focused. Thanks!

  26. 26.

    This will be lengthy. I apologize in advance.

    ECS -
    I don’t think upholding an abortion law with no health exception is good news. The Court’s inconsistencies are troubling, but may indicate a trend towards the reversal of Casey. I believe Roe was a disastrous decision, for reasons having nothing to do with abortion itself. It purported to create a new constitutional right, but in the process it lowered the standard of protection afforded other constitutional rights. At the very least, it has been extremely damaging to First Amendment law. And generally, I think was inappropriate in terms of federalism. If the Court is leaning towards scaling back some of this case law, I think it could be a positive development. But right now, it just seems to be muddying the waters and creating more confusion.

    As for requiring injury in fact before standing, I think it’s a basic ripeness issue. I only mentioned Roe as a good example of an exception because of the mootness issues in that case, specifically, that Ms. McCorvey wouldn’t have been pregnant anymore by the time the case would reach the Court.

    z –

    An increased risk probably isn’t a harm, legally speaking. You need an injury in fact under Article III “ripeness” requirements, or else you can’t have standing. We are definitely all not harmed by the statute. All men aren’t harmed. All women who aren’t pregnant aren’t harmed. Even pregnant women with no medical needs for abortions aren’t harmed. Even the doctors who perform those procedures aren’t harmed unless they perform a prohibited procedure and are then criminally charged. That’s probably how it will be challenged.

    I really appreciate this discussion generally. I find this topic extremely difficult, and I genuinely don’t know where I stand on the issues. I have heard several conflicting accounts by doctors of whether the prohibited procedures are actually safer for some women. I feel like there isn’t a whole lot of consensus in the medical community with respect to the so-called partial birth abortion. Consequently, I feel like the legislature may be on shaky policy ground when it passes a law in such an unclear area. But I think that second guessing by the Supreme Court is probably worse.

  27. 27.

    If risk isn’t a harm, why do we have the term ‘reckless endangerment’?

  28. 28.

    Hi, Peter-

    Thanks for your comment. I agree with you that the inconsistencies between Carhart and Stenberg are troubling, which many court observers attribute solely to a shift in the Court’s composition since Stenberg was decided seven years ago. With respect to the standing issue, technically you’re correct, however, the Carhart Court was not precluded from striking down the law on a facial challenge. That’s precisely what the Court did seven years ago in Stenberg.

    I don’t think we can characterize abortion rights as a federalism issue. Abortion rights have evolved since Roe through Casey, meaning abortion rights are no longer grounded solely in a vague constitutional penumbra of privacy rights – as Justice Ginsburg’s expressed in her dissenting opinion in Carhart:

    Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

  29. 29.

    Justice Ginsburg is definitely a student of the individual rights philosophy. I still get a little disgusted with the term “abortion rights” because I don’t see it as any more of a “right” than my desire to drive 70 mph. If my state wants to prohibit it, then it’s illegal. If my state doesn’t regulate it, it’s fine. But at least from a systemic rights perspective (my preferred paradigm of constitutional rights), having a “right” to an abortion just doesn’t make sense. So while abortion rights really aren’t federalism issue, the fact that we’re arguing about them signals to me a genuine failing of federalism.

    Not that Carhart is particularly hopeful to a systemic rights perspective. It has a good chance of becoming moot anyway, since a commerce clause challenge to the Partial Birth Abortion Ban would likely succeed. I think Justice Thomas would definitely be open to such a challenge.

  30. 30.

    Well, we’d have to be careful with your analogy of abortion “rights” to speeding. Would you use the same analysis if your state wanted to prohibit people from purchasing birth control? There are certain “rights” not found in the U.S. Constitution that states can’t abrogate. The “right” to marry in Zablocki, for instance. The “right” to participate in consensual homosexual sex in Lawrence v. Texas, etc.

    The Commerce Clause challenge is interesting. Perhaps the Court would follow its Morrison and Jones precedents, but after Gonzales v. Raich, a Commerce Clause challenge to the Partial Birth Abortion statute would probably fail. I’d be interested in what Scalia/Thomas would have to say to a Commerce Clause challenge, however. We know Scalia’s states’ rights rhetoric goes out the window whenever politically expedient – a la Bush v. Gore.

  31. 31.

    Am searching for something in Mormondom that deals with the aftermath of abortion for those in the church. Can anyone point me in a useful direction? The silence so far is deafening and somewhat bewildering.

    I have written to Peggy Fletcher Stack at the “Salt Lake Tribune.” She may tackle the subject in 2013.

    How about an “Ensign” article? I have tried pitching the idea there as well.

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