Gonzales v. Carhart
550 U.S. 124
Case Year: 2007
Case Ruling: 5-4, Reversed
Opinion Justice: Kennedy
Court Opinion Joiner(s):
Alito, Roberts, Scalia, Thomas
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Stevens, Souter, Breyer
2nd Concurring Opinion
2nd Dissenting Opinion
3rd Concurring Opinion
3rd Dissenting Opinion
Other Concurring Opinions:
In Stenberg v. Carhart (2000), the justices considered a considered a Nebraska law banning so-called "partial birth abortions"--a phrase often used to describe one of several different kinds of (controversial) procedures used to terminate pregnancies after four months. The challenged Nebraska law outlawed a variation on the usual second-trimester procedure, "dilation and evacuation" (D&E). Under the usual procedure, the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. Under the variation outlawed by Nebraska (the intact D&E) the doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull.
The Nebraska law applied both to the pre- and postviability stages. It allowed an exception only if the procedure was necessary to preserve the life of the mother. Physicians who violated the law faced the criminal penalties of up to twenty years in prison and a loss of the right to practice medicine. About thirty other states had laws similar to Nebraska's.
Writing for a five-justice majority in Stenberg, Justice Stephen Breyer, struck down the law largely on two grounds. First, it did not allow an exception for the preservation of the health of the mother. This ground is consistent with the Court's long-held position that abortion bans had to allow exceptions for the preservation of both the life and health of the mother. Second, the Court found, under its precedents in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), that the law placed an undue burden on the right to an abortion because it limited a woman's choice of abortion procedures.
Following the Court's decision in Stenberg, Congress passed the Partial-Birth Abortion Ban Act of 2003 to proscribe partial birth abortions, as Nebraska had. But the federal legislators attempted to respond to Stenberg in two ways. First, they made factual findings. Congress determined that the Supreme Court in Stenberg "was required to accept the very questionable findings issued by the district court judge," but that Congress was "not bound to accept the same factual findings." Based on its fact finding, Congress concluded that there is a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act's language differed from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits "knowingly perform[ing] a partial-birth abortion ... that is [not] necessary to save the life of a mother." It defines "partial-birth abortion" as a procedure in which the doctor: "(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother's] body ... , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother's] body ... , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus"; and "(B) performs the overt act, other than completion of delivery, that kills the fetus."
After Congress passed the Act, several abortion doctors challenged its constitutionality in a federal district court. That court agreed with the doctors and found the law unconstitutional because it lacked an exception allowing the prohibited procedure where necessary for the mother's health and it covered not merely intact D&E but also other D&Es. Affirming, the Eighth Circuit found that a lack of consensus existed in the medical community as to the banned procedure's necessity, and thus Stenberg required legislatures to err on the side of protecting women's health by including a health exception. In a separate suit, in which the pro-choice organization Planned Parenthood challenged the Act, another district court too struck it down as unconstitutional. It held that the law unduly burdened a woman's ability to choose a second-trimester abortion and lacked a health exception as required by Stenberg. The Ninth Circuit agreed and affirmed. The Supreme Court consolidated the two suits, with Gonzales v. Carhart as the lead case.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003 (Act), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court's opinion in Stenberg v.' Carhart (2000) , which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it....
[Part I of Justice Kennedy's opinion contains a detailed description of abortion methods.]...
The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey (1992) , did not find support from all those who join the instant opinion. Whatever one's views concerning the Casey joint opinion, it is evident a premise central to its conclusion--that the government has a legitimate and substantial interest in preserving and promoting fetal life--would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.
Casey involved a challenge to Roe v. Wade (1973). The opinion contains this summary:
"It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each."
Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.
To implement its holding, Casey rejected both Roe's rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. On this point Casey overruled the holdings in two cases because they undervalued the State's interest in potential life. (overruling Thornburgh v. American College of Obstetricians and Gynecologists (1986) and Akron v. Akron Center for Reproductive Health, Inc. (1983) ).
We assume the following principles for the purposes of this opinion. Before viability, a State "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." It also may not impose upon this right an undue burden, which exists if a regulation's "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar....
Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." The abortions affected by the Act's regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act... imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this ... challenge to its validity.
The Act's...description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." The Act expresses respect for the dignity of human life.
Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain:
"Partial-birth abortion ... confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life."
There can be no doubt the government "has an interest in protecting the integrity and ethics of the medical profession." Under our precedents it is clear the State has a significant role to play in regulating the medical profession.
Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court's precedents after Roe had "undervalue[d] the State's interest in potential life." The plurality opinion indicated "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." This was not an idle assertion. The three premises of Casey must coexist. The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a "disturbing similarity to the killing of a newborn infant," and thus it was concerned with "draw[ing] a bright line that clearly distinguishes abortion and infanticide." The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State's "fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia."
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.
In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue.
It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.
It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act's anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, "undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world." There would be a flaw in this Court's logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was "to place a substantial obstacle in the path of a woman seeking an abortion."
The Act's furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where " 'necessary, in appropriate medical judgment, for [the] preservation of the ... health of the mother.' " The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it "subject[ed] [women] to significant health risks." Here...whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position.
Respondents presented evidence that intact D&E may be the safest method of abortion, for reasons similar to those adduced in Stenberg. Abortion doctors testified, for example, that intact D&E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D&E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D&E was safer for women with certain medical conditions or women with fetuses that had certain anomalies.
These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D&E always to be a safe alternative.
There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women. ...
The question becomes whether the Act can stand when this medical uncertainty persists. The Court's precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.
This traditional rule is consistent with Casey, which confirms the State's interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community....
Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. ...
In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress' findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. ...
On the other hand, relying on the Court's opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception "if 'substantial medical authority supports the proposition that banning a particular procedure could endanger women's health.' " As illustrated by respondents' arguments and the decisions of the Courts of Appeals, Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty.
A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where 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....
The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05-380, pp. 21-23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack.
The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose "a heavy burden" upon the parties maintaining the suit. Rust v. Sullivan, 500 U. S. 173, 183 (1991) . What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) ("[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid" (internal quotation marks omitted)), with Casey, 505 U. S., at 895 (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory provision facially invalid). See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174 (1996) . We need not resolve that debate.
As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. "[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation." United States v. Raines, 362 U. S. 17, 21 (1960) (internal quotation marks omitted). For this reason, "[a]s-applied challenges are the basic building blocks of constitutional adjudication." Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).
The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U. S. 410, 411-412 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman's life because the Act already contains a life exception. 18 U. S. C. §1531(a) (2000 ed., Supp. IV).
Respondents have not demonstrated that the Act... it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.
It is so ordered.
JUSTICE THOMAS, WITH WHOM JUSTICE SCALIA JOINS, CONCURRING.
I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey (1992) . I write separately to reiterate my view that the Court's abortion jurisprudence, including Casey and Roe v. Wade, (1973) has no basis in the Constitution. See Casey (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
JUSTICE GINSBURG, WITH WHOM JUSTICE STEVENS, JUSTICE SOUTER, AND JUSTICE BREYER JOIN, DISSENTING.
Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.
I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices....
As Casey comprehended, at stake in cases challenging abortion restrictions is a woman's "control over her [own] destiny." "There was a time, not so long ago," when women were "regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution." Those views, this Court made clear in Casey, "are no longer consistent with our understanding of the family, the individual, or the Constitution." Women, it is now acknowledged, have the talent, capacity, and right "to participate equally in the economic and social life of the Nation." Their ability to realize their full potential, the Court recognized, is intimately connected to "their ability to control their reproductive lives." 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.
In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman's health....
In Stenberg, we expressly held that a statute banning intact D&E was unconstitutional in part because it lacked a health exception. We noted that there existed a "division of medical opinion" about the relative safety of intact D&E, but we made clear that as long as "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," a health exception is required.
Thus, we reasoned, division in medical opinion "at most means uncertainty, a factor that signals the presence of risk, not its absence." "[A] statute that altogether forbids [intact D&E] . . . . consequently must contain a health exception."
In 2003, a few years after our ruling in Stenberg, Congress passed the Partial-Birth Abortion Ban Act--without an exception for women's health.The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede....
Congress claimed there was a medical consensus that the banned procedure is never necessary. But the evidence "very clearly demonstrate[d] the opposite." ...
Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods.
In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence. The courts had the benefit of "much more extensive medical and scientific evidence . . . concerning the safety and necessity of intact D&Es." ...
Based on thoroughgoing review of the trial evidence and the congressional record, each of the District Courts to consider the issue rejected Congress' findings as unreasonable and not supported by the evidence...
The District Courts' findings merit this Court's respect. Today's opinion supplies no reason to reject those findings. Nevertheless, despite the District Courts' appraisal of the weight of the evidence, and in undisguised conflict with Stenberg, the Court asserts that the Partial-Birth Abortion Ban Act can survive "when ... medical uncertainty persists." This assertion is bewildering. 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 Courts. Those records indicate that "the majority of highly-qualified experts on the subject believe intact D&E to be the safest, most appropriate procedure under certain circumstances." ...
The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women's health. ...
Ultimately, the Court admits that "moral concerns" are at work, concerns that could yield prohibitions on any abortion. ....
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." 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.
This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited. Compare, e.g., Muller v. Oregon (1908) ("protective" legislation imposing hours-of-work limitations on women only held permissible in view of women's "physical structure and a proper discharge of her maternal funct[ion]"); Bradwell v. State (Bradley, J., concurring) ("Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. ... The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother."), with United States v. Virginia (1996) (State may not rely on "overbroad generalizations" about the "talents, capacities, or preferences" of women; "[s]uch judgments have ... impeded ... women's progress toward full citizenship stature throughout our Nation's history").
Though today's majority may regard women's feelings on the matter as "self-evident," this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society." ...
Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of "the rule of law" and the "principles of stare decisis." Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman's health. Although Congress' findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. A decision so at odds with our jurisprudence should not have staying power.
In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court's defense of the statute provides no saving explanation. In candor, the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court--and with increasing comprehension of its centrality to women's lives.
For the reasons stated, I dissent from the Court's disposition and would affirm the judgments before us for review.