A Case History of the Battle Against the Federal Abortion Ban
In 1997, the Center for Reproductive Rights filed suit against a Nebraska abortion ban in federal court, on behalf of a physician, Dr. LeRoy Carhart. The case, Stenberg v. Carhart, eventually made its way to the United States Supreme Court. In 2000, the Court held that the Nebraska law was unconstitutional because it would have outlawed some of the safest and most common abortion procedures early in the second trimester and because it contained no exception for circumstances in which the banned procedures would be the safest for the woman.Despite the Court’s ruling, three years later, President George W. Bush signed similar legislation, the “Partial-Birth Abortion Ban Act of 2003,” into law. Three federal district courts and three appellate courts held the law unconstitutional. The Bush Administration petitioned the Court to review the case, and on February 21, 2006, the Supreme Court announced that it would grant review. The following timeline traces the important events in this ongoing battle.June 12, 1997: Dr. LeRoy Carhart, represented by the Center for Reproductive Rights, challenges a recently enacted Nebraska law, banning so-called “partial-birth” abortions. The case is assigned to federal district court Judge Richard J. Kopf (appointed by President George H. W. Bush). Judge Kopf blocks enforcement of the law against Dr. Carhart while the case is pending.July 2, 1998: Following a trial, Judge Kopf declares the Nebraska ban unconstitutional on three grounds and permanently blocks its enforcement against Dr. Carhart and his patients. Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998). Judge Kopf concludes that the Nebraska law subjects Dr. Carhart’s patients “to a significantly greater risk of injury or death” and that the procedures used by Dr. Carhart, but banned by the law, are “appreciably safer” than the standard D &, E method. Id. at 1123. As a result, the law imposes an impermissible undue burden. In addition, Judge Kopf finds that the definition of “partial-birth” abortion is so broad that it bans all D &, E abortions. He concludes that “a ban on the most widely used abortion procedure during the relevant gestational stage” also imposes an unconstitutional undue burden. Id. at 1129. Finally, Judge Kopf holds that the terms within the law are unconstitutionally vague. Id. at 1131-32.September 24, 1999: The Eighth Circuit Court of Appeals affirms the district court’s judgment that the Nebraska law bans D &, E procedures and therefore, by banning the “most common procedure for second trimester abortions,” imposes an unconstitutional undue burden. Carhart v. Stenberg, 192 F. 3d 1142, 1151 (8th Cir. 1999). The Court does not address the health exception or vagueness issues.June 28, 2000: The Supreme Court in a 5-4 decision holds the Nebraska statute unconstitutional on two grounds. Stenberg v. Carhart, 530 U.S. 914 (2000). First, the Court strikes down the ban because it does not contain a health exception. The Court explains that a restriction on abortion “requires an exception where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother, for this Court has made clear that a State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Id. at 931. Thus, where “significant medical authority supports the proposition that in some circumstances” the procedure banned by the Act [referred to by the Court as D &, X or intact D&,E] would be the safest, a health exception is required. Id. at 932. In light of the district court’s finding that the procedure banned by the Act “obviates health risks in certain circumstances, a highly plausible record-based explanation of why this might be so, a division of opinion among some medical experts over whether D &, X is generally safer, and an absence of controlled medical studies that would help answer some of these medical questions,” the Court concludes that the Nebraska statute was unconstitutional without a health exception. Id. at 936-37.The second ground on which the Court finds the Nebraska law unconstitutional is that it is so broadly drafted that it bans the most commonly used method of abortion after the first trimester, the D &, E procedure. The state of Nebraska, in fact, concedes that if the law were interpreted to sweep so broadly it would impose an undue burden on women seeking abortions. Id. at 938. Having rejected the state’s attempts to limit the reach of the ban, the Court concludes that the law affects “the most commonly used method for performing previability second trimester abortions,” and therefore, is unconstitutional. Id. at 945-46.As a result of the Stenberg ruling, numerous federal courts declare unconstitutional similar state laws, enacted both before and after the decision.October 2003: Congress passes the “Partial-Birth Abortion Ban Act of 2003.” Previous attempts to pass a similar ban in 1996 and 1997 were vetoed by President Bill Clinton, and considered, but not enacted in subsequent years. The 2003 Act openly criticizes Judge Kopf’s findings in the Stenberg case, and blatantly seeks to circumvent the Supreme Court’s ruling by making contrary “findings.” Those findings include statements that a “medical consensus” exists that procedures banned by the Act are “never medically necessary and should be prohibited,” that procedures banned by the Act pose “serious risks” to the health of women, and that, as a result, no health exception is necessary. The Act also contains a modified definition of what is prohibited, in an attempt to avoid the other fatal flaw identified in Stenberg—that the law bans all D &, E procedures.November 5, 2003: President George W. Bush signs the Federal Abortion Ban into law. It is immediately challenged by Dr. Carhart and three other physicians in the District of Nebraska. The judge in the case, Carhart v. Gonzalez, issues a temporary restraining order preventing enforcement of the ban the same day.Two other challenges to the ban are filed in federal district courts in the Southern District of New York (National Abortion Federation v. Ashcroft) and the Northern District of California (Planned Parenthood Federation of America v. Ashcroft). Both courts also issue orders preventing enforcement of the ban. All three cases are set for separate trials to begin at the end of March, 2004.March 29, 2004: Judge Kopf begins a two-week trial during which he receives testimony from Dr. Carhart and several other witnesses regarding the safety benefits of the procedures banned by the Act as well as specific situations in which the procedures are necessary to preserve women’s health. He also receives into evidence the entire Congressional record relating to the ban, dating back to 1995.June 1, 2004: The U.S. District Court for the Northern District of California declares the federal abortion ban unconstitutional because it fails to provide a health exception in Planned Parenthood v. Ashcroft. The court also invalidated the ban on undue burden and vagueness grounds. Planned Parenthood Federation of America v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004).August 26, 2004: In National Abortion Federation (NAF) v. Ashcroft, the U.S. District Court for the Southern District of New York declares the federal abortion ban unconstitutional because it fails to provide a health exception. NAF v. Ashcroft, 330 F. Supp. 2d. 436 (S.D.N.Y. 2004).September 8, 2004: Judge Kopf issues a 269 page opinion finding the federal abortion ban unconstitutional on the grounds that it fails to provide a health exception and because it imposes an undue burden on women seeking abortions by banning some D&,E procedures. Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004). In his opinion, Judge Kopf comprehensively reviews the Congressional record and the evidence presented at trial. He concludes that the congressional record itself “proves that key Congressional Findings are unreasonable.”In fact, the congressional record proves the opposite of the Congressional Findings. According to responsible medical opinion, there are times when the banned procedure is medically necessary to preserve the health of a woman and a respectful reading of the congressional record proves that point. No reasonable and unbiased person could come to a different conclusion. (Id. At 1012.)Judge Kopf also finds that “the overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances.” Id. at 1017. In addition, Judge Kopf finds that the ban includes some D&,E procedures, and therefore, like the Nebraska statute in Stenberg, is unconstitutional. Id. at 1031.July 8, 2005: The Eighth Circuit unanimously affirms the judgment of the district court finding the ban unconstitutional — Carhart v. Gonzalez, 413 F.3d 791 (8th Cir. 2005). Concluding that the government presented no “new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg,” the Eighth Circuit concludes that the ban is unconstitutional for failing to provide a health exception. Id. at 803. The circuit court does not reach the issue of whether the ban prohibits D&,E procedures. The Eighth Circuit panel consists of Judge James B. Loken (appointed by President George H. W. Bush), Kermit E. Bye (appointed by President Clinton), and George G. Fagg (appointed by President Ronald Reagan).
September 23, 2005: The Attorney General petitions the United States Supreme Court for review of the Eighth Circuit’s decision. Gonzalez v. Carhart, No. 05-380.January 31, 2006: The Courts of Appeals for the Ninth and Second Circuits affirmed the lower court rulings in Planned Parenthood Federation v. Gonzalez, 04-16621 (9th Cir.2006) and National Abortion Federation v. Gonzalez, 04-5201-CV (2d Cir.2006), respectively.February 21, 2006: Supreme Court grants review in Gonzalez v. Carhart.
November 8, 2006: Gonzales v. Carhart and Gonzales v. Planned Parenthood are argued before the Supreme Court.April 18, 2007: In a stunning reversal, the Supreme Court rules against women’s health and in favor of abortion restrictions. In its ruling upholding the Federal Abortion Ban case, the U.S. Supreme Court effectively overturned 30 years of precedent and announced that women’s health is no longer a paramount concern. The Center for Reproductive Rights said the Court’s decision paves the way for state and federal legislatures to enact additional bans on abortions, including those that doctors say are safe and medically necessary.