The Act proscribes a particular manner of abortion.
Between 85 and 90 percent of abortions are performed during the first trimester by vacuum aspiration or medication. The act does not address these.
Another method used, usually during the second trimester, is regular dilation and evacuation (standard D&E), whereby a physician dilates a woman's cervix and reaches in with forceps to pull out the fetus, usually in parts.
This act addresses intact D&E, whereby the whole fetus is pulled out at once and then the skull is crushed.
After Stenberg, the federal ban was passed. It responded to Stenberg by:
Making factual findings that there was a moral, medical and ethical consensus that partial-birth abortion is never medically necessary and should be prohibited.
Procedural History
SCOTUS held that the ban was constitutional.
Issues
Is a ban against partial-birth abortions unconstitutional?
Holding/Rule
A federal ban on partial-birth abortions is not unconstitutional for purposes of the due process clause.
Reasoning
Court reemphasizes the Casey holding.
It is unclear whether the act encompasses only intact D&E or all types of D&E, so Respondents claim void for vagueness and claim that if this outlaws all D&Es then it is essentially outlawing all second term abortions.
Court disagrees and says that this does not place an undue burden because:
Act does not restrict an abortion procedure involving the delivery of an expired fetus and is inapplicable to abortions that do not involve vaginal delivery.
Act does apply pre- and post-viability since a fetus is deemed "living" while in utero even if it is not viable outside of the womb.
In addition, a doctor must perform an overt act to kill the fetus after it is delivered. Delivery itself is not an overt act for purposes of the statute.
There is also a dual intent necessary:
Physician must intend to deliver the fetus past an anatomical boundary, AND
Physician must have delivered the fetus with the intent to commit the overt act to terminate the fetus.
If either of these is missing, there is no crime.
Act is not void for vagueness because it sets relatively clear guidelines regarding what is prohibited. It does not say "a substantial portion" of the fetus like the Stenberg statute, which would be too vague.
Does this act impose a substantial obstacle to late-term, but pre-viability, abortions?
Court concludes that it does not.
Act's purpose is to preserve the humanity of newborns and other innocent human life. Congress was also concerned with the effects on the medical community and on its reputation.
This ban furthers the gov't's objectives because this procedure is laden with the power to devalue human life.
State also has an interest in ensuring that a mother's choice is well-informed and that she won't find out after having an abortion that it was performed through such a procedure.
There is documented medical disagreement about whether the Act's prohibition would ever impose significant health risks on women.
This uncertainty is sufficient basis to conclude that the act does not impose an undue burden.
If the procedure is necessary, an injection to terminate the fetus before extraction would suffice to avoid liability under the act.
Is the lack of a health exception enough to impose substantial burden?
When standard medical options are available, mere convenience does not suffice to displace them.
The act is not invalid on its face when 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.
Thomas and Scalia (concurring)
Good decision, but Roe should be overturned.
Dissent
This case refuses to take Casey and Stenberg seriously.
It blurs the line between previability and postviability abortions.
It bans a procedure that the American College of Gynecologists considers necessary and proper in certain cases.
Also, Court is upholding a provision with no exception safeguarding a woman's health.
A woman's control over her destiny is at stake here.
The Court makes assumptions that women regret their choice to have an abortion and suffer from depression and loss of self esteem. In addition, majority says that doctors will fail to inform women of what the procedure entails in order to protect them.
But, instead of just requiring women to be informed, the Court upholds a ban on the whole procedure at the expense of the health and safety of the women.
Court blurs the viability line.
Court uses pejorative language such as "abortion doctor" to describe gynecologists and obstetricians and calls the fetus a "baby" or an "unborn child" to show its moral disgust.
Shows that the decision was made on moral, not legal, grounds.
Casey makes it clear that, in determining whether any restriction poses an undue burden on a large fraction of women, the relevant class must be judged by reference to those women for whom it is an actual rather than an irrelevant restriction.
Must look at the women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk.
The very purpose of the health exception is to protect women in exceptional cases, not most women in most cases.
