Testimony of Professor Robert A. Destro
The Constitutionality of H.R. 4965: “The Partial-Birth Abortion Ban Act of 2002”
Tuesday, July 9, 2002
Mr. Chairman:
Thank you for giving me the opportunity to testify before the Committee this afternoon, and to submit these written comments for the record. It is an honor and a privilege to contribute to the legislative process.
My oral testimony emphasizes three main points.
1. Although I believe H.R. 4965 is a constitutional exercise of Congress’ lawmaking authority under Article I §8 judicial affirmation of its constitutionality will depend upon the Court’s willingness to hold, as a matter of constitutional fact, that banning partial-birth abortions does not impose an “undue burden” on the right of a woman “to terminate her pregnancy.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) reaffirming the “central holding of Roe v. Wade, 410 U.S. 113 (1973).
2. The Supreme Court of the United States is closely divided (5-4) on which “burdens” are reasonable, and therefore constitutional, and which should be classified as “undue,” and thus unconstitutional. Based on the Court’s decision in Stenberg v. Carhart, 530 U.S. 914 (2000), the ultimate decision concerning the constitutionality of H.R. 4965 appears to turn on how Justice Sandra Day O’Connor will read the factual record, both before the Congress and in the trial court. Concurring in Stenberg, she wrote that “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.” Stenberg, 530 U.S. at 951 (O’Connor, J. concurring). As a result, her vote is likely to rest on the answers to four questions of fact:
a. Is H.R. 4965 a good faith effort by Congress to strike a reasonable and narrowly-tailored balance between the government’s interest in preserving the health of women seeking to terminate late-term pregnancies, its legitimate interest in protecting unborn children from cruel and painful procedures for the termination of pregnancy, and its equally significant interest in ensuring that each member of the medical profession understand that the lives of unborn children are protected by law once the birth process has progressed to the point where killing the child is not necessary to effectuate the termination of the woman’s pregnancy?
b. Is the “the overt act, other than completion of delivery, that kills the partially delivered living fetus”, §1531(B)(1)(b) (emphasis added), necessary to the preservation of the health of women seeking the termination of their pregnancies?
c. Are there equally effective alternatives to the partial-birth abortion (D&X) procedure that will permit the termination of a pregnancy without adverse effects on the health of the woman?
d. Is there sufficient evidence to support Congressional findings that the lack of an open-ended health exception would not “amount in practical terms to a substantial obstacle to a woman seeking an abortion,” Stenberg, 530 U.S. at 951, because “partial-birth abortion poses serious risks to the health of a woman undergoing the procedure,”and because of its primary and secondary effects on the woman, the attending physician and staff, and on society as a whole.
I. H.R. 4965 is a Good Faith Effort by Congress to Protect Women, their Unborn Children, the Medical Profession, and Society as a Whole from an Inhumane, Medically Unnecessary, and Ethically Unacceptable Procedure.
A majority of the Supreme Court has long been skeptical of State and federal attempts to eliminate or restrict abortion. In Stenberg v. Carhart, 530 U.S. 914, 920 (2000), the Court reaffirmed its view that a law that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” is unconstitutional.
The Congressional Findings of Fact that introduce H.R. 4965 make it clear that the Congressional purpose is not to place a “substantial obstacle in the path of a woman seeking an abortion” of either a nonviable or a viable fetus, but rather to legislate to the full extent of its authority under the Constitution - and only that far. Unlike the Nebraska law involved in Stenberg, H.R. 4965 is limited in its scope. It does not even cover all partial-birth abortions, but only those in which the child has emerged from his or her mother’s body to the point where an overt act killing it becomes an obvious offense against the life of a specific child, and to the interests of society as a whole.
Under Roe v. Wade and its progeny, the legislatures are not to place “undue burdens” on the right of a woman to choose to “terminate her pregnancy.” Under H.R. 4965, that right is unburdened unless and until the physician decides to deliver the child to the point to the point where the head or the lower trunk “past the navel” is completely delivered. At that point, it is not only reasonable - but ethically imperative - that the physician bear the burden of proving that killing the child is necessary to preserve the life or physical health of the mother.
It is my opinion that Congress has ample power to pass this legislation. U.S. Const. art. I §8. The fact that the power is exercised at the “boundary” of what is permissible under Roe v. Wade does not make it any less legitimate. In Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635 (1952), the late Justice Robert Jackson noted that the “actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” Accordingly, he noted, that there is a “zone of twilight” between the branches where “concurrent authority [may exist], or in which its distribution is uncertain” and that “[i] n this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Id., 343 U.S. at 637 (Jackson, J. concurring). The cases listed in the Findings of Fact also bear witness to the Court’s willingness to recognize the legitimacy of Congressional authority in cases where “events and contemporary imponderables” make it legitimate to defer to the superior fact-finding ability and political good sense of the People’s elected representatives.
Partial-birth abortion - as defined by H.R. 4965 - is defined very narrowly. I will now turn to the question: “Does H.R. 4965 a strike a reasonable balance between the right of a woman to terminate her pregnancy and other important individual and social interests?”
II. Justice O’Connor Holds the Balance of Power
The Supreme Court of the United States is closely divided (5-4) on which “burdens” are reasonable, and therefore constitutional, and which should be classified as “undue,” and thus unconstitutional. Based on the Court’s decision in Stenberg v. Carhart, 530 U.S. 914 (2000), the ultimate decision concerning the constitutionality of H.R. 4965 appears to turn on how Justice Sandra Day O’Connor will read the factual record, both before the Congress and in the trial court.
Concurring in Stenberg, Justice O’Connor has written that “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.” Stenberg, 530 U.S. at 951 (O’Connor, J. concurring). As a result, her vote is likely to rest on the answers to four questions of fact:
1. Is H.R. 4965 a good faith effort by Congress to enact a narrowly-tailored law designed to strike a reasonable balance between the government’s interest in preserving the health of women seeking to terminate late-term pregnancies, its legitimate interest in protecting unborn children from cruel and painful procedures for the termination of pregnancy, and its equally significant interest in ensuring that each member of the medical profession understand that the lives of unborn children are protected by law once the birth process has progressed to the point where killing the child is not necessary to effectuate the termination of the woman’s pregnancy?
2. Is the “the overt act, other than completion of delivery, that kills the partially delivered living fetus”, §1531(B)(1)(b) (emphasis added), necessary to the preservation of the health of women seeking the termination of their pregnancies?
3. Are there equally effective alternatives to the partial-birth abortion (D&X) procedure that will permit the termination of a pregnancy without adverse effects on the health of the woman?
4. Is there sufficient evidence to support Congressional findings that the lack of an open-ended health exception would not “amount in practical terms to a substantial obstacle to a woman seeking an abortion,” Stenberg, 530 U.S. at 951, because “partial-birth abortion poses serious risks to the health of a woman undergoing the procedure,”and because of its primary and secondary effects on the woman, the attending physician and staff, and on society as a whole.
Justice O’Connor’s opinions make it clear that reference to factual context and the actual operation of the statute is relevant in every context where laws are challenged on the basis of the Bill of Rights or the Fourteenth Amendment.. See, e.g., Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2467 (2001) (O’Connor J., concurring) (“careful examination and weighing of all the relevant circumstances”). A thorough understanding of the immediate facts and social context is critical in Equal Protection cases, see Yick Wo v. Hopkins, 118 U.S. 356 (1886); in cases involving free speech, see Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995), Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); in cases raising free exercise claims, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), in Establishment Clause cases, Zelman v. Simmons-Harris, 536 U.S. - (2002); Lynch v. Donnelly, 465 U.S. 668, 693-94 (1984) ("communicat[ion of] an endorsement of religion" is "in large part a legal question to be answered on the basis of judicial interpretation of social facts.”)(O'Connor, J., concurring).
If abortion providers are to challenge H.R. 4965 utilizing the “undue burden” test, they must prove, by a preponderance of the evidence:
1. That the statute - taken as a whole and viewed in context - either has no legitimate purpose, or that the alleged purpose of the statutory scheme at issue is a pretext for an otherwise unconstitutional attempt to limit a woman’s right under Roe v. Wade to terminate a pregnancy; or
2. That the statue would have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion”
Under H.R. 4965, the nature of the judicial task is thus inherently different than that which faced the Court in Stenberg. A ban on partial-birth abortion - as defined by H.R. 4965 - does not implicate “a woman’s right of privacy or bodily integrity” unless and until the physicians desiring to perform them can make the case that killing the fetus is “necessary to preserve the health of the mother” at or after the point that it has largely emerged from its mother’s body. Based on the facts adduced by Congress to date, that task will be nearly impossible.
Justices Stevens & Ginsburg are of the view that that any law “that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’ violates the Constitution.” In their view, “[s]uch an obstacle exists if the State stops a woman from choosing the procedure her doctor "reasonably believes will best protect the woman in [the] exercise of [her] constitutional liberty.’" Stenberg v. Carhart, 530 U.S. at 951 (Ginsburg & Stevens, JJ. concurring), quoting Stevens, J. in Carhart and Casey, 505 U.S., at 877 ("means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it").
Unless the Department of Justice mounts an extraordinary effort at trial to defend the Congressional findings of fact, it will be virtually impossible to prove to these two Justices that the Partial-Birth Abortion Act of 2002 is a “good faith effort” designed in part to protect women choosing to terminate their pregnancies. It is fairly safe to predict that they will view Congress’ efforts in much the same way Judge Posner viewed Wisconsin’s in Hope Clinic v. Ryan, 195 F.3d 857, 881 (C.A.7 1999): "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue." quoted in Carhart, 530 U.S. at 951 (Ginsburg & Stevens, JJ. concurring).
C The Chief Justice, and Justices Scalia and Thomas
The Chief Justice, and Justices Scalia and Thomas are of the view that Roe v. Wade and Planned Parenthood v. Casey are wrongly decided as a matter of constitutional principle. In Stenberg they wrote that striking the Nebraska statute was both wrong in principle, and also as an application of the rules elaborated by the Court in Roe v. Wade and Casey. Unless there were some indication that the Act was an attack on the power of judicial review itself, it is likely that they would vote to uphold H.R. 4965.
D Justices Breyer, Souter & Kennedy
Along with Justice O’Connor, the remaining three members of the Court - Justices Breyer, Souter, and Kennedy - will rest their opinions on the weight of the evidence brought to bear at trial in defense of the Act.
Justice Souter joined the majority opinion in Stenberg without qualification, and Justice Breyer wrote it. The degree to which they parsed the medical evidence available to them in the trial record indicates that, in their view, all abortion procedures are permissible if there is a reasonable difference of medical opinion concerning their utility.
Although it is possible that a strong trial record supporting the Congressional findings of fact might convince them that Congress’ conclusions are correct, and that a partial-birth abortion is “never medically necessary to preserve the health of a woman,” Findings of Fact ¶14(E), the more likely response is that the lack of any evidence tending to show that the procedure should be available as an option is “beside the point” because “[t]he word ‘necessary’ … cannot refer to an absolute necessity or to absolute proof.” Stenberg, 530 U.S. at 934-937.
In their view, a statute, like this one, that does not contain a health exception will fail because “the health exception question is whether protecting women's health requires an exception for those infrequent occasions [when it might be useful under the circumstances].” Id., 530 U.S. at 934.
Justice Kennedy, by contrast, concluded on the facts that the Nebraska law at issue in Stenberg was one that “denie[d] no woman the right to choose an abortion and place[d] no undue burden upon the right.” Because the Act is very tightly drawn, and prohibits only partial-birth abortions that occur after complete expulsion from the body of the mother of the head, or the lower trunk “past the navel”, it is likely that he would vote to uphold the it.
III. Developments in Medical Technology Make it Imperative that Congress Begin to Draw a Distinction Between the “Termination of Pregnancy” and the Disposition of the Unborn Child
It is no longer true - as the majority in both Roe v. Wade and Stenberg v. Carhart seem to assume - that “termination of pregnancy” and “abortion” are synonymous with the demise of the fetus. Partial-birth abortion - like cloning and fetal experimentation - are controversial because both the public and their elected representatives know that it is not only possible to protect the interests of the unborn in these circumstances, it is possible to do so without harming to the woman’s right to "to terminate her pregnancy before viability."
Congress can accomplish this goal in part by passing H.R. 4965, which permits the termination of pregnancy to continue as planned, but criminalizes an overt act intended to kill the infant once it has reached the point where “birth” is either imminent, or has taken place, depending upon one’s reading of relevant state and federal law.
If anything is clear from the cases and commentary, it is that “birth” is the point at which the child acquires rights of its own. The statutory and case law is also clear that the state’s interest in protecting the child exists before birth. The law of homicide, for example, requires certainty “beyond a reasonable doubt” that the child was actually “born alive,” whereas the law of inheritance requires less certainty. In tort, the fact of birth is now irrelevant - as long as causation can be proved.
Developments in microsurgery and reproductive technology make it plain that the law is struggling to keep up with science, and that Congress needs to act to protect its ability to prevent human life from becoming a commercial or industrial commodity. If a pregnant woman permits ex utero surgery on a child, and has it returned to her womb, when does its “birth” take place? When it is outside the woman’s body, after it becomes “viable,” or when the pregnancy “terminates” by natural or induced labor or c-section? Roe v. Wade does not even speculate on questions such as these. Nor does it resolve the legal and moral status of frozen or cloned embryos. The Thirteenth and Fourteenth Amendments leave those questions to Congress.
In Kass v. Kass, 91 N.Y.2d 554, 564, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998), a dispute between divorcing spouses over the disposition of frozen embryos, the New York Court of Appeals held that the disposition of pre-zygotes “does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as "persons" for constitutional purposes” (emphasis added).
The point is a simple one: science will one day make it possible for a woman to terminate her pregnancy and preserve the life of her unborn offspring. H.R. 4965 recognizes that where the medical profession has the ability to terminate a pregnancy without taking any overt steps to kill the child, it must do so. It is a modest step toward preserving not only the spirit of the Thirteenth Amendment, but also Congressional power to protect human life. I urge you to pass it.