Partial-Birth Abortion: Recent Developments in the Law







Prepared for Members and Committees of Congress



The term “partial-birth abortion” refers generally to an abortion procedure where the fetus is
removed intact from a woman’s body. The procedure is described by the medical community as
“intact dilation and evacuation” or “dilation and extraction” (“D & X”) depending on the
presentation of the fetus. Intact dilation and evacuation involves a vertex or “head first”
presentation, the induced dilation of the cervix, the collapsing of the skull, and the extraction of
the entire fetus through the cervix. D & X involves a breech or “feet first” presentation, the
induced dilation of the cervix, the removal of the fetal body through the cervix, the collapsing of
the skull, and the extraction of the fetus through the cervix.
Since 1995, at least thirty-one states have enacted laws banning partial-birth abortions. Although
many of these laws have not taken effect because of temporary or permanent injunctions, they
remain contentious to both pro-life advocates and those who support a woman’s right to choose.
This report discusses the U.S. Supreme Court’s decision in Stenberg v. Carhart, a case involving
the constitutionality of Nebraska’s partial-birth abortion ban statute. In Stenberg, the Court
invalidated the Nebraska statute because it lacked an exception for the performance of the partial-
birth abortion procedure when necessary to protect the health of the mother, and because it
imposed an undue burden on a woman’s ability to have an abortion.
This report also reviews various legislative attempts to restrict partial-birth abortions during the ththth
106, 107, and 108 Congresses. S. 3, the Partial-Birth Abortion Ban Act of 2003, was signed
by the President on November 4, 2003. On April 18, 2007, the Court upheld the act, finding that,
as a facial matter, it is not unconstitutionally vague and does not impose an undue burden on a
woman’s right to terminate her pregnancy. In reaching its conclusion in Gonzales v. Carhart, the
Court distinguished the federal statute from the Nebraska law at issue in Stenberg.






Introduc tion ..................................................................................................................................... 1
Backgr ound ..................................................................................................................................... 1
Stenberg v. Carhart..........................................................................................................................3
Federal Proposals to Ban Partial-Birth Abortion.............................................................................5

106th Congress...........................................................................................................................5 th


107 Congress...........................................................................................................................6 th


108 Congress...........................................................................................................................7
Gonzales v. Carhart.........................................................................................................................7
Author Contact Information..........................................................................................................10






Since 1995, at least thirty-one states have enacted laws banning the so-called “partial-birth”
abortion procedure. Although many of these laws have not taken effect because of permanent
injunctions, they remain contentious to both pro-life advocates and those who support a woman’s 1
right to choose. The concern over partial-birth abortion has been shared by Congress. Congress thth2
passed bans on the partial-birth abortion procedure in both the 104 and 105 Congresses.
Unable to overcome presidential vetoes during both congressional terms, the Partial-Birth
Abortion Ban Act was reintroduced in each successive Congress until its enactment in 2003. S. 3,
the Partial-Birth Abortion Ban Act of 2003, was passed by Congress in October 2003. The
measure was signed by the President on November 5, 2003.
The U.S. Supreme Court has also addressed the performance of partial-birth abortions. In
Stenberg v. Carhart, a 2000 case, the Court invalidated a Nebraska statute that prohibited the
performance of such abortions. Prior to this decision, the U.S. Courts of Appeals remained 3
divided on the legitimacy of state statutes banning partial-birth abortions. In Gonzales v.
Carhart, a 2007 case, the Court upheld the Partial-Birth Abortion Ban Act of 2003, finding that,
as a facial matter, it is not unconstitutionally vague and does not impose an undue burden on a 4
woman’s right to terminate her pregnancy. This report discusses the Court’s decisions and the ththth
partial-birth abortion measures in the 106, 107, and 108 Congresses.

The Supreme Court has held that a woman has a constitutional right to choose whether to 5
terminate her pregnancy. Although a state cannot prohibit a woman from having an abortion, it
can promote its interest in potential human life by regulating, and even proscribing, abortion after
fetal viability so long as it allows an exception for abortions that are necessary for the 6
preservation of the life or health of the mother. In Planned Parenthood of Southeastern
Pennsylvania v. Casey, the Court expanded a state’s authority to regulate abortion by permitting
regulation at the pre-viability stage so long as such regulation does not place an “undue burden” 7
on a woman’s ability to have an abortion.

1 See Center for Reproductive Rights, So-Called “Partial Birth Abortion” Bans, at http://www.crlp.org/
st_law_pba.html (last visited December 28, 2006).
2 H.R. 1833, 104th Cong. (1995); H.R. 1122, 105th Cong. (1997).
3 See Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998) (Virginia Partial Birth Abortion
Act is not unconstitutionally vague because it cannotreasonably be read to prohibit the D & E procedure); Hope th
Clinic v. Ryan, 195 F.3d 857 (7 Cir. 1999) (Illinois and Wisconsin statutes prohibiting partial-birth abortion are not th
unconstitutionally vague); Women’s Medical Professional Corporation v. Voinovich, 130 F.3d 187 (6 Cir. 1997), cert.
denied, 523 U.S. 1036 (1998) (Ohio statute banning partial-birth abortion imposes an undue burden on the ability to
have an abortion because it restricts both the D & X and D & E procedures).
4 127 S. Ct. 1610 (2007).
5 Roe v. Wade, 410 U.S. 113 (1973). See also CRS Report RL33467, Abortion: Legislative Response, by Jon O.
Shimabukuro and Karen J. Lewis.
6 Roe, 410 U.S. at 164-65.
7 505 U.S. 833 (1992).





The term “partial-birth abortion” refers generally to an abortion procedure where the fetus is
removed intact from a woman’s body. The procedure is described by the medical community as
“intact dilation and evacuation” or “dilation and extraction” (“D & X”) depending on the 8
presentation of the fetus. Intact dilation and evacuation involves a vertex or “head first”
presentation, the induced dilation of the cervix, the collapsing of the skull, and the extraction of 9
the entire fetus through the cervix. D & X involves a breech or “feet first” presentation, the
induced dilation of the cervix, the removal of the fetal body through the cervix, the collapsing of 10
the skull, and the extraction of the fetus through the cervix. This report uses the term “D & X”
to encompass both procedures.
D & X is one of several abortion methods. The principal methods of abortion are suction 11
curettage, induction, and standard dilation and evacuation (“D & E”). The decision to perform
one abortion method over another usually depends on the gestational age of the fetus. During the 12
first trimester, the most common method of abortion is suction curettage. Suction curettage
involves the evacuation of the uterine cavity by suction. The embryo or fetus is separated from
the placenta either by scraping or vacuum pressure before being removed by suction. Induction
may be performed either early in the pregnancy or in the second trimester. In this procedure, the
fetus is forced from the uterus by inducing preterm labor.
D & E is the most common method of abortion in the second trimester.13 Suction curettage is no
longer viable because the fetus is too large in the second trimester to remove by suction alone. D
& E involves the dilation of the cervix and the dismemberment of the fetus inside the uterus. Fetal
parts are later removed from the uterus either with forceps or by suction.
D & X is typically performed late in the second trimester between the twentieth and twenty-
fourth weeks of pregnancy. Although the medical advantages of D & X have been asserted, the
nature of the procedure has prompted pro-life advocates to characterize D & X as something akin 14
to infanticide.
In Women’s Medical Professional Corporation v. Voinovich, the U.S. Court of Appeals for the
Sixth Circuit discussed the differences between the D & E and D & X procedures in reference to
an Ohio act that banned partial-birth abortions:
The primary distinction between the two procedures is that the D & E procedure results in a
dismembered fetus while the D & X procedure results in a relatively intact fetus. More
specifically, the D & E procedure involves dismembering the fetus in utero before
compressing the skull by means of suction, while the D & X procedure involves removing
intact all but the head of the fetus from the uterus and then compressing the skull by means
of suction. In both procedures, the fetal head must be compressed, because it is usually too
large to pass through a woman’s dilated cervix. In the D & E procedure, this is typically

8 See Stenberg v. Carhart, 530 U.S. 914, 927 (2000).
9 Id.
10 Id.
11 See Hope Clinic, 195 F.3d at 861.
12 See Voinovich, 130 F.3d at 198.
13 Id.
14 Hope Clinic, 195 F.3d at 883.





accomplished by either suctioning the intracranial matter or by crushing the skull, while in 15
the D & X procedure it is always accomplished by suctioning the intracranial matter.
The procedural similarities between the D & E and D & X procedures have contributed to the
concern that the language of partial-birth abortion bans may prohibit both methods of abortion.
Plaintiffs challenging partial-birth abortion statutes have generally sought the invalidation of such
statutes on the basis of two arguments: first, that the statutes are unconstitutionally vague, and
second, that the statutes are unconstitutional because they impose an undue burden on a woman’s
ability to obtain an abortion. The Supreme Court has held that an enactment is void for vagueness 16
if its prohibitions are not clearly defined. Vague laws are found unconstitutional because they
fail to give people of ordinary intelligence a reasonable opportunity to know what is prohibited 17
and thus allow them to act lawfully. Moreover, the inability to provide explicit standards is
feared to result in the arbitrary and discriminatory enforcement of a statute.
The undue burden standard was adopted by the Court in Casey. In that case, the Court held that a
state could enact abortion regulations at the pre-viability stage so long as an “undue burden” is
not placed on a woman’s ability to have an abortion. Any regulation which “has the purpose or
effect of placing a substantial obstacle in the path of a woman seeking an abortion” creates an 18
undue burden and is invalid.
The Sixth Circuit was the first to consider whether a ban on partial-birth abortions imposes an
undue burden on a woman’s ability to have an abortion. In Voinovich, the court found that an
Ohio statute that attempted to ban the D & X procedure was unconstitutional under Casey. The
court determined that the language of the statute targeted the D & X procedure, but encompassed
the D & E procedure. Because the D & E procedure is the most common method of second
trimester abortions, the court contended that the statute created an undue burden on women
seeking abortions at this point in their pregnancies.

In Stenberg v. Carhart, a Nebraska physician who performed abortions at a specialized abortion
facility sought a declaration that Nebraska’s partial-birth abortion ban statute violated the U.S. 19
Constitution. The Nebraska statute provided:
No partial birth abortion shall be performed in this state, unless such procedure is necessary
to save the life of the mother whose life is endangered by a physical disorder, physical
illness, or physical injury, including a life-endangering physical condition caused by or 20
arising from the pregnancy itself.

15 Voinovich, 130 F.3d at 199.
16 See Grayned v. City of Rockford, 408 U.S. 104 (1972).
17 Id.
18 Casey, 505 U.S. at 877.
19 530 U.S. 914 (2000).
20 Neb. Rev. Stat. § 28-328(1).





The term “partial birth abortion” was defined by the statute as “an abortion procedure in which
the person performing the abortion partially delivers vaginally a living unborn child before killing 21
the unborn child and completing the delivery.” The term “partially delivers vaginally a living
unborn child before killing the unborn child” was further defined as “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 22
the unborn child and does kill the unborn child.”
Violation of the statute carried a prison term of up to twenty years and a fine of up to $25,000. In
addition, a doctor who violated the statute was subject to the automatic revocation of his license
to practice medicine in Nebraska.
Among his arguments, Dr. Carhart maintained that the meaning of the term “substantial portion”
in the Nebraska statute was unclear and thus, could include the common D & E procedure in its
ban of partial-birth abortions. Because the Nebraska legislature failed to provide a definition for
“substantial portion,” the U.S. Court of Appeals for the Eighth Circuit interpreted the Nebraska
statute to proscribe both the D & X and D & E procedures: “if ‘substantial portion’ means an arm
or a leg - and surely it must - then the ban ... encompasses both the D & E and the D & X 23
procedures.” The Eighth Circuit acknowledged that during the D & E procedure, the physician
often inserts his forceps into the uterus, grasps a part of the living fetus, and pulls that part of the
fetus into the vagina. Because the arm or leg is the most common part to be retrieved, the 24
physician would violate the statute.
The state argued that the statute’s scienter or knowledge requirement limited its scope and made it
applicable only to the D & X procedure. According to the state, the statute applied only to the
deliberate and intentional performance of a partial birth abortion; that is, the partial delivery of a 25
living fetus vaginally, the killing of the fetus, and the completion of the delivery. However, the
Eighth Circuit found that the D & E procedure involves all of the same steps: “The physician
intentionally brings a substantial part of the fetus into the vagina, dismembers the fetus, leading to
fetal demise, and completes the delivery. A physician need not set out with the intent to perform a 26
D & X procedure in order to violate the statute.”
The Supreme Court affirmed the Eighth Circuit’s decision by a 5-4 margin. The Court based its
decision on two determinations. First, the Court concluded that the Nebraska statute lacked any
exception for the preservation of the health of the mother. Second, the Court found that the statute
imposed an undue burden on the right to choose abortion because its language covered more than
the D & X procedure.
Despite the Court’s previous instructions in Roe and Casey, that abortion regulation must include
an exception where it is “necessary, in appropriate medical judgment, for the preservation of the
life or health of the mother,” the state argued that Nebraska’s partial-birth abortion statute did not
require a health exception because safe alternatives remained available to women, and a ban on

21 Neb. Rev. Stat. § 28-326(9).
22 Id.
23 Carhart, 192 F.3d at 1150.
24 Id.
25 Id.
26 Id.





partial-birth abortions would create no risk to the health of women.27 Although the Court
conceded that the actual need for the D & X procedure was uncertain, it recognized that the 28
procedure could be safer in certain circumstances. Thus, the Court stated, “a statute that
altogether forbids D & X creates a significant health risk . . . [t]he statute consequently must 29
contain a health exception.”
In its discussion of the undue burden that would be imposed if the Nebraska statute was upheld,
the Court maintained that the plain language of the statute covered both the D & X and D & E 30
procedures. Although the Nebraska State Attorney General offered an interpretation of the
statute that differentiated between the two procedures, the Court was reluctant to recognize such a
view. Because the Court traditionally follows lower federal court interpretations of state law and
because the Attorney General’s interpretative views would not bind state courts, the Court held
that the statute’s reference to the delivery of “a living unborn child, or a substantial portion 31
thereof” implicated both the D & X and D & E procedures.
Because the Stenberg Court was divided by only one member, Justice O’Connor’s concurrence
raised concern among those who support a woman’s right to choose. Justice O’Connor’s
concurrence indicated that a state statute prohibiting partial-birth abortions would likely
withstand a constitutional challenge if it included an exception for situations where the health of
the mother is at issue, and if it was “narrowly tailored to proscribing the D & X procedure 32
alone.” Justice O’Connor identified Kansas, Utah, and Montana as having partial-birth abortion 33
statutes that differentiate appropriately between D & X and the other procedures.


The Partial-Birth Abortion Ban Act of 1999, S. 1692, was introduced by then Senator Rick
Santorum on October 5, 1999. The bill was approved by the Senate on October 21, 1999, by a
vote of 63-34. H.R. 3660, the Partial-Birth Abortion Ban Act of 2000, was introduced by then
Representative Charles T. Canady on February 15, 2000. H.R. 3660 was passed by the House on
April 5, 2000, by a vote of 287-141. On May 25, 2000, the House passed S. 1692 without
objection after striking its language and inserting the provisions of H.R. 3660. House conferrees
were subsequently appointed, but no further action was taken.

27 Stenberg, 530 U.S. at 931 (quoting Roe, 410 U.S. at 164-65).
28 Stenberg, 530 U.S. at 937.
29 Id. at 938.
30 Id. at 939.
31 Id. at 940.
32 Id. at 950. See also Stenberg, 530 U.S. at 951 (If there were adequate alternative methods for a woman safely to
obtain an abortion before viability, it is unlikely that prohibiting the D & X procedure alone would ‘amount in practical
terms to a substantial obstacle to a woman seeking an abortion’ [citation omitted] ... Thus, a ban on partial-birth
abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and
health of the mother would be constitutional in my view.”).
33 See Stenberg, 530 U.S. at 950.





Both S. 1692 and H.R. 3660 would have imposed a fine and/or imprisonment not to exceed two
years for any physician who knowingly performed a partial-birth abortion. Partial-birth abortion
was defined as an abortion in which a person “deliberately and intentionally ... vaginally delivers
some portion of an intact living fetus until the fetus is partially outside the body of the mother, for
the purpose of performing an overt act that the person knows will kill the fetus” and actually 34
performs the overt act that kills the fetus. In addition to criminal penalties, S. 1692 and H.R.
3660 provided a private right of action for “[t]he father, if married to the mother at the time she
receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years
at the time of the abortion, the maternal grandparents of the fetus . . . unless the pregnancy 35
resulted from the plaintiff’s criminal conduct or the plaintiff consented to the abortion.”
When President Clinton vetoed a similar partial-birth abortion bill, H.R. 1122, during the 105th
Congress, he focused on the bill’s failure to include an exception to the ban that would permit
partial-birth abortions to protect “the lives and health of the small group of women in tragic
circumstances who need an abortion performed at a late stage of pregnancy to avert death or 36
serious injury.” While S. 1692 and H.R. 3660 would have allowed a partial-birth abortion to be
performed when it was necessary to save the life of the mother, such an abortion would not have
been available when it was simply medically preferable to another procedure.

H.R. 4965, the Partial-Birth Abortion Ban Act of 2002, was introduced by Representative Steve
Chabot on June 19, 2002. The bill was passed by the House on July 24, 2002, by a vote of 274-
151. The measure was not considered by the Senate. H.R. 4965 would have prohibited physicians
from performing a partial-birth abortion except when it was necessary to save the life of a 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. The bill
defined the term “partial-birth abortion” to mean an abortion in which “the person performing the
abortion 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 37
fetus.” Physicians who violated the act would have been subject to a fine, imprisonment for not
more than two years, or both.
Although H.R. 4965 did not provide an exception for the performance of a partial-birth abortion
when the health of the mother was at issue, supporters of the measure maintained that the bill was
constitutional. They contended that congressional hearings and fact finding revealed that a
partial-birth abortion is never necessary to preserve the health of a woman, and that such an
abortion poses serious risks to a woman’s health.

34 S. 1692, 106th Cong. (1999); H.R. 3660, 106th Cong. (2000).
35 Id.
36 Message to the House of Representatives Returning Without Approval Partial Birth Abortion Legislation, 33 Weekly
Comp. Pres. Doc. 41 (October 13, 1997).
37 H.R. 4965, 107th Cong. § 3 (2002).






S. 3, the Partial-Birth Abortion Ban Act of 2003, was signed by the President on November 5,
2003 (P.L. 108-105). The House approved H.Rept. 108-288, the conference report for the
measure, on October 2, 2003, by a vote of 281-142. The Senate agreed to the conference report
on October 21, 2003, by a vote of 64-34.
In general, the act resembles the Partial-Birth Abortion Ban Act of 2002 in language and form.
The act prohibits physicians from performing a partial-birth abortion except when it 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. Physicians who violate the act are subject to a fine, imprisonment for not more
than two years, or both.
Although the Supreme Court previously held that restrictions on abortion must allow for the
performance of an abortion when it is necessary to protect the health of the mother, the act does
not include such an exception. In his introductory statement for the act, then Senator Rick 38
Santorum discussed the act’s lack of a health exception. He maintained that an exception is not
necessary because of the risks associated with partial-birth abortions. Senator Santorum insisted
that congressional hearings and expert testimony demonstrate “that a partial birth abortion is
never necessary to preserve the health of the mother, poses significant health risks to the woman, 39
and is outside the standard of medical care.”

Within two days of the act’s signing, federal courts in Nebraska, California, and New York 40
blocked its enforcement. On April 18, 2007, the Court upheld the Partial-Birth Abortion Ban Act
of 2003, finding that, as a facial matter, it is not unconstitutionally vague and does not impose an 41
undue burden on a woman’s right to terminate her pregnancy. In Gonzales v. Carhart, the Court 42
distinguished the federal statute from the Nebraska law at issue in Stenberg. According to the
Court, the federal statute is not unconstitutionally vague because it provides doctors with a 43
reasonable opportunity to know what conduct is prohibited. Unlike the Nebraska law, which
prohibited the delivery of a “substantial portion” of the fetus, the federal statute includes
“anatomical landmarks” that identify when an abortion procedure will be subject to the act’s
prohibitions. The Court noted: “[I]f 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 44
of the act do not apply.”

38 149 Cong. Rec. S2523 (daily ed. February 14, 2003) (statement of Sen. Santorum).
39 149 Cong. Rec., at S2523.
40 Abortion Ban Blocked Again, Wash. Post, November 7, 2003, at A2.
41 Unlike “as-applied challenges, which consider the validity of a statute as applied to a particular plaintiff, facial
challenges seek to invalidate a statute in all of its applications.
42 127 S. Ct. 1610 (2007).
43 Id. at 1628.
44 Id. at 1627.





The Court also maintained that the inclusion of a scienter or knowledge requirement in the federal
statute alleviates any vagueness concerns. Because the act applies only when a doctor
“deliberately and intentionally” delivers the fetus to an anatomical landmark, the Court concluded
that a doctor performing the D & E procedure would not face criminal liability if a fetus is 45
delivered beyond the prohibited points by mistake. The Court observed: “The scienter 46
requirements narrow the scope of the act’s prohibition and limit prosecutorial discretion.”
In reaching its conclusion that the Partial-Birth Abortion Ban Act of 2003 does not impose an
undue burden on a woman’s right to terminate her pregnancy, the Court considered whether the
federal statute is overbroad, prohibiting both the D & X and D & E procedures. The Court also
considered the statute’s lack of a health exception.
Relying on the plain language of the act, the Court determined that the federal statute could not be
interpreted to encompass the D & E procedure. The Court maintained that the D & E procedure
involves the removal of the fetus in pieces. In contrast, the federal statute uses the phrase 47
“delivers a living fetus.” The Court stated: “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 48
through the cervix.” The Court also identified the act’s specific requirement of an “overt act”
that kills the fetus as evidence of its inapplicability to the D & E procedure. The Court indicated:
“This distinction matters because, unlike [D&X], standard D&E does not involve a delivery 49
followed by a fatal act.” Because the act was found not to prohibit the D & E procedure, the
Court concluded that it is not overbroad and does not impose an undue burden a woman’s ability
to terminate her pregnancy.
According to the Court, the absence of a health exception also did not result in an undue burden. 50
Citing its decision in Ayotte v. Planned Parenthood of Northern New England, the Court noted 51
that a health exception would be required if it subjected women to significant health risks.
However, acknowledging medical disagreement about the act’s requirements ever imposing
significant health risks on women, the Court maintained that “the question becomes whether the 52
act can stand when this medical uncertainty persists.” Reviewing its past decisions, the Court
indicated that it has given state and federal legislatures wide discretion to pass legislation in areas 53
where there is medical and scientific uncertainty. The Court concluded that this medical
uncertainty provides a sufficient basis to conclude in a facial challenge of the statute that it does 54
not impose an undue burden.

45 Id. at 1628.
46 Id. at 1629.
47 18 U.S.C. § 1531(b)(1)(A).
48 Gonzales, 127 S. Ct. at 1630.
49 Id. at 1631.
50 546 U.S. 320 (2006)
51 Gonzales, 127 S.Ct. at 1635. For information on Ayotte v. Planned Parenthood of Northern New England, see CRS
Report RL33467, Abortion: Legislative Response, by Jon O. Shimabukuro and Karen J. Lewis, supra footnote 5.
52 Gonzales, 127 S.Ct. at 1636.
53 Id.
54 Id. at 1637. The Court indicated that its conclusion was also supported by other considerations, including the
availability of the D & E procedure.





Although the Court upheld the Partial-Birth Abortion Ban Act of 2003 without a health exception,
it acknowledged that there may be “discrete and well-defined instances” where the prohibited 55
procedure “must be used.” However, the Court indicated that exceptions to the act should be
considered in as-applied challenges brought by individual plaintiffs: “In an as-applied challenge 56
the nature of the medical risk can be better quantified and balanced than in a facial attack.”
Justice Ginsburg authored the dissent in Gonzales. She was joined by Justices Stevens, Souter,
and Breyer. Describing the Court’s decision as “alarming,” Justice Ginsburg questioned
upholding the federal statute when the relevant procedure has been found to be appropriate in 57
certain cases. Citing expert testimony that had been introduced, Justice Ginsburg maintained
that the prohibited procedure has safety advantages for women with certain medical conditions, 58
including bleeding disorders and heart disease.
Justice Ginsburg also criticized the Court’s decision to uphold the statute without a health
exception. Justice Ginsburg declared: “Not only does it defy the Court’s longstanding precedent
affirming the necessity of a health exception, with no carve-out for circumstances of medical
uncertainty . . . it gives short shrift to the records before us, carefully canvassed by the District 59
Courts.” Moreover, according to Justice Ginsburg, the refusal to invalidate the Partial-Birth
Abortion Ban Act of 2003 on facial grounds was “perplexing” in light of the Court’s decision in 60
Stenberg. Justice Ginsburg noted: “[I]n materially identical circumstances we held that a statute 61
lacking a health exception was unconstitutional on its face.”
Finally, Justice Ginsburg contended that the Court’s decision “cannot be understood as anything
more than an effort to chip away at a right declared again and again by [the] Court—and with 62
increasing comprehension of its centrality to women’s lives.” Citing the language used by the
Court, including the phrase “abortion doctor” to describe obstetrician-gynecologists and surgeons
who perform abortions, Justice Ginsburg maintained that “[t]he Court’s hostility to the right Roe 63
and Casey secured is not concealed.” She argued that when a statute burdens constitutional
rights and the measure is simply a vehicle for expressing hostility to those rights, the burden is 64
undue.

55 Id. at 1638.
56 Id. at 1638-39.
57 Id. at 1641.
58 Id. at 1644-45.
59 Id. at 1646.
60 Id. at 1650.
61 Id.
62 Id. at 1653.
63 Id. at 1650.
64 Id. at 1653.





Jon O. Shimabukuro
Legislative Attorney
jshimabukuro@crs.loc.gov, 7-7990