Department of Justice Brief on Partial Birth Abortion Bill

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No. 01-4124



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT


WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al.,
Plaintiffs-Appellees,

v.

BOB TAFT, et al.,
Defendants-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO


BRIEF FOR THE UNITED STATES OF AMERICA
AS AMICUS CURIAE SUPPORTING REVERSAL


ROBERT D. McCALLUM, JR.
Assistant Attorney General

GREGORY G. LOCKHART
United States Attorney

GREGORY G. KATSAS
Deputy Assistant Attorney General

ERIC D. MILLER
(202) 514-2754
Attorney, Appellate Staff

Civil Division, Room 9131
Department of Justice
Washington, D.C. 20530-0001

Attorneys for Amicus Curiae
United States of America



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT


No. 01-4124


WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al.,
Plaintiffs-Appellees,

v.

BOB TAFT, et al.,
Defendants-Appellants.


BRIEF FOR THE UNITED STATES OF AMERICA
AS AMICUS CURIAE SUPPORTING REVERSAL


INTEREST OF THE UNITED STATES

The United States has a significant interest in clarifying the constitutional principles that would govern federal legislation relating to the partial birth method of abortion. Prior to the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), both the 104th and 105th Congresses passed, by wide margins in both Houses, legislation that would have imposed substantial restrictions on the partial birth method of abortion. See id. at 994 n.11 (Thomas, J., dissenting). Although President Clinton vetoed both bills, President Bush has expressed support for such legislation.

Moreover, even in the absence of specific federal legislation, the United States often has filed amicus briefs addressing the constitutional standards governing state abortion regulation. In that context, we usually have defended such regulations, see, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and occasionally have supported challenges to such regulations, see Stenberg, 530 U.S. at 914.

ISSUE PRESENTED FOR REVIEW

Whether a State may constitutionally prohibit the partial birth method of abortion, both before and after fetal viability, unless that procedure is "necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function."

STATEMENT OF FACTS

1. In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court struck down a Nebraska statute prohibiting the partial birth method of abortion. The Court held that the Nebraska statute was unconstitutional for two reasons. First, the Court held that, because the Nebraska statute applied not only to the dilation and extraction method of abortion ("D&X method"), but also to the widely used dilation and evacuation method ("D&E method"), it imposed an "undue burden" on women seeking abortions prior to fetal viability. See id. at 938-946. Second, the Court stressed that the Nebraska statute prohibited the partial birth method of abortion except where that procedure was "necessary to save the life of the mother," Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999) (emphasis added), in violation of the Court's prior holdings in Roe v. Wade, 410 U.S. 113, 164-165 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992), that a State must permit abortions "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 530 U.S. at 930-938 (emphasis added). Justice O'Connor, who provided the fifth vote for the majority in Stenberg, stated explicitly that "a ban on partial birth abortion that only prescribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional." Id. at 951 (concurring opinion).

2. This case involves an Ohio statute prohibiting the partial birth method of abortion. Unlike the Nebraska statute invalidated in Stenberg, the Ohio statute is expressly limited to the D&X method, and it contains an exception to permit partial birth abortion where "necessary" to preserve the "life or health" of the mother.

The Ohio statute defines "partial birth procedure" as

the medical procedure that includes all of the following elements in sequence:

(a) Intentional dilation of the cervix of a pregnant woman, usually over a sequence of days;

(b) In a breech presentation, intentional extraction of at least the lower torso to the navel, but not the entire body, of an intact fetus from the body of the mother, or in a cephalic presentation, intentional extraction of at least the complete head, but not the entire body, of an intact fetus from the body of the mother;

(c) Intentional partial evacuation of the intracranial contents of the fetus, which procedure the person performing the procedure knows will cause the death of the fetus, intentional compression of the head of the fetus, which procedure the person performing the procedure knows will cause the death of the fetus, or performance of another intentional act that the person performing the procedure knows will cause the death of the fetus;

(d) Completion of the vaginal delivery of the fetus.

Ohio Rev. Code 2919.151(A)(3).

The statute expressly excludes from this definition of restricted conduct the "dilation and evacuation procedure of abortion," the "suction curettage procedure of abortion," and the "suction aspiration procedure of abortion." Id. 2919.151(F).

The Ohio statute applies to partial birth abortions performed both before and after fetal viability. The provision applicable to pre-viability abortions states that

no person shall knowingly perform a partial birth procedure on a pregnant woman when the procedure is not necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother's life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function.

Id. 2919.151(B).

A companion provision imposes an identical prohibition for post-viability abortions. Id. 2919.151(C). The statute defines a "serious risk of the substantial and irreversible impairment of a major bodily function" as "any medically diagnosed condition that so complicates the pregnancy of a woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function." Id. 2919.151(A)(5).

In enacting these provisions, the Ohio legislature declared its intent to "prevent the unnecessary death of fetuses when they are substantially outside the body of the mother." 2000 Ohio H.B. 351, 3. The legislature invoked Ohio's interests in "maintaining a strong public policy against infanticide" and "preventing unnecessary cruelty." Id. It determined that the "indignity of being partly delivered before being deliberately killed" is "a form of cruelty that should not be unnecessarily inflicted upon any being of human origin." Id.

3. Plaintiffs, who wish to perform partial birth abortions in Ohio, filed an action challenging the constitutionality of the Ohio statute and seeking to enjoin its enforcement. The district court granted a preliminary injunction, Women's Medical Professional Corp. v. Taft, 114 F. Supp. 2d 664 (S.D. Ohio. 2000), and then a permanent injunction, Women's Medical Professional Corp. v. Taft, 162 F. Supp. 2d 929 (S.D. Ohio. 2001). The court rejected plaintiffs' arguments that the Ohio statute is unconstitutionally vague, see id. at 936, and that it imposes an undue burden by covering common forms of abortion other than the D&X method, see 114 F. Supp. 2d at 680-685. However, the court agreed with plaintiffs that the statute's health exception is unconstitutionally narrow.

For abortions conducted prior to fetal viability, the district court read Stenberg to provide that a State "must allow the 'partial birth procedure' to be performed when a physician believes it may provid[e] greater safety for a patient." 162 F. Supp. 2d at 950; see also id. at 940 (States must "allo[w] the 'partial birth procedure' to be performed in cases where the medical evidence shows that it is simply the safest method of abortion" (quoting 114 F. Supp. 2d at 688)). Applying that standard, the court held that Ohio's health exception is unconstitutionally narrow because it "only allows the 'partial birth procedure' to be performed to preserve a woman's health if her health is placed at risk by some medically diagnosed condition," and does not "allo[w] the 'partial birth procedure' to be performed when the medical evidence simply shows that it may be the safest method of abortion." Id. at 941.

For post-viability abortions, the court read Stenberg to provide that, if a woman must terminate her pregnancy for health reasons, a State must permit her "'to choose the least risky method'" of abortion. Id. at 960 (quoting 114 F. Supp. 2d at 694). Applying that standard, it held that Ohio's health exception is unconstitutional because it fails to allow a woman "to undergo the 'partial birth procedure,' post-viability, when she has a serious physical health problem and the banned procedure, as opposed to abortion generally, while not absolutely necessary, is the safest method of terminating her pregnancy." Id. at 961.

SUMMARY OF ARGUMENT

Under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), States may regulate abortion prior to fetal viability, so long as that regulation does not impose an "undue burden" on the right to abortion. After fetal viability, States may ban abortion altogether, so long as they allow abortions necessary to safeguard the woman's life or health. Although Stenberg v. Carhart, 530 U.S. 914 (2000), invalidated a statute banning partial birth abortion, it acknowledged that such a ban would be constitutional if it contained an exception allowing this procedure where necessary to safeguard life or health.

The district court erred in invalidating the post-viability ban on the partial birth method of abortion, because the Ohio statute provides exactly the health exception required by the Supreme Court. The district court held that a partial birth abortion is "necessary," as that term is used in Stenberg, whenever it is marginally safer than other forms of abortion. At the same time, it held that a partial birth abortion is "necessary," as that term is used in the Ohio statute, only when it is absolutely necessary to preserve life or health. The former holding misconstrues Casey and Stenberg, and the latter disregards the obligation to construe statutes to avoid, rather than to exacerbate, constitutional difficulties.

In the pre-viability context, the district court committed similar errors. It overlooked the similarity between the Ohio health exception and a "medical emergency" exception previously upheld by the Supreme Court as sufficiently safeguarding women's health. It construed Stenberg to require a health exception so broad that it would swallow the "undue burden" principle of Casey. Finally, it failed to adopt a reasonable saving construction of the Ohio statute.

ARGUMENT

THE OHIO PARTIAL BIRTH ABORTION STATUTE IS CONSTITUTIONAL

In Stenberg v. Carhart, 530 U.S. 914 (2000), the Supreme Court established two constitutional requirements for state restrictions on the partial birth method of abortion. The Supreme Court held that a ban on the partial birth method of abortion cannot extend to the D&E method prior to fetal viability and must contain an exception allowing the partial birth procedure where necessary to preserve a woman's life or health. See id. at 930-946. The Ohio statute satisfies both of these requirements: it expressly excludes the D&E method from its coverage, see Ohio Rev. Code 2919.151(F), and it expressly provides a health exception, see id. 2919.151(B) & (C).

The terms of Ohio's health exception, moreover, are virtually identical to the terms of health exceptions previously upheld by the Supreme Court. With respect to partial birth abortions conducted after fetal viability, the district court faulted the Ohio health exception for allowing the procedure only where "necessary, in reasonable medical judgment, to preserve the life or health of the mother," Ohio Rev. Code 2919.151(C). See 162 F. Supp. 2d at 960. Yet the Supreme court has required a health exception to abortion restrictions to apply only where "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." See, e.g., Stenberg, 530 U.S. at 930; Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 (1992); Roe v. Wade, 410 U.S. 113, 164-165 (1973). With respect to abortions conducted before fetal viability, the district court faulted the Ohio health exception for applying only in cases involving a "medically diagnosed condition that so complicates the pregnancy of a woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function," Ohio Rev. Code 2919.151(B) & (A)(5). See 162 F. Supp. 2d at 941-942. Yet the Supreme Court, in the context of abortions conducted before fetal viability, has upheld as constitutionally sufficient a "medical emergency" exception to abortion restrictions that applied only in cases involving a "condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." See Casey, 505 U.S. at 879 (quoting 18 Pa. Cons. Stat. 3203 (1990)).

The Ohio statute is thus facially constitutional for the simple reason that it is virtually a carbon-copy of provisions that the Supreme Court already has held are constitutional. The district court's extensive discussion of assertedly conflicting medical evidence, see 162 F. Supp. 2d at 947-951, is entirely beside the point. To be sure, there may be individual cases where medical opinion is divided on the question whether a partial birth abortion is necessary to protect the life or health of the mother. But Ohio has provided a health exception for all such cases, and a court cannot hold that a statute is facially unconstitutional unless it concludes that the statute is unconstitutional in all of its possible applications, see United States v. Salerno, 481 U.S. 739, 745 (1987), or, at a minimum, that it is unconstitutional in a "large fraction" of relevant cases, see Casey, 505 U.S. at 895; see also Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193-197 (6th Cir. 1997). Those standards cannot possibly be met where, as here, the operative provisions are identical in all relevant respects to provisions already held constitutional.

The district court, however, adopted a dramatically different analysis. It held that the Constitution requires States to allow the partial birth method of abortion whenever it is "simply safer" than other available methods of abortion, regardless of how small the absolute or relative difference in safety, for (i) women needing a post-viability abortion for health reasons, see 162 F. Supp. 2d at 960, and (ii) women desiring a pre-viability abortion for any reason at all, see id. at 940. The district court also strained to construe the health exception that Ohio has provided, not to make it consistent with this incrementally safer standard, and not even to make it consistent with the more modest standards required by Casey and Stenberg, but to incorporate a requirement that partial birth abortion be "absolutely necessary" to protect a woman's health, see 162 F. Supp. 2d at 961, a phrase that does not appear in the statute and would make it unconstitutional. All of these holdings were in error.

We begin with a summary of the controlling constitutional standards established in Casey and Stenberg. Then, we demonstrate the district court's numerous errors, in construing both these cases and the Ohio statute, in the context of post-viability abortions and pre-viability abortions respectively. As noted above, these errors have produced the invalidation of a statute whose operative language was copied almost verbatim from binding Supreme Court precedents. That cannot be correct.

A. The Supreme Court Has Recognized That States Have Legitimate and Important Interests That May Be Pursued Through the Regulation of Abortion

In Casey, the Supreme Court established the constitutional standards that govern state regulation of abortion. Casey makes clear that the States have broad latitude to impose such regulation both before and after fetal viability. Prior to fetal viability, States may impose restrictions that are not an "undue burden" on the right to an abortion, see 505 U.S. at 874, and a restriction imposes an undue burden only if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," id. at 877. After fetal viability, States may prohibit abortion entirely, "'except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" Id. at 879 (quoting Roe, 410 U.S. at 164-165).

Casey also stressed that, under these standards, a State may regulate abortion not only to promote the mother's health and safety but also may "from the outset ... show its concern for the life of the unborn." Id. at 869. The Court stressed that Roe itself had "recognized the State's 'important and legitimate interest in protecting the potentiality of human life,'" and it concluded that this interest had been "given too little acknowledgment and implementation" in the cases that followed Roe. Id. at 871 (quoting Roe, 410 U.S. at 162). Accordingly, the Court in Casey expressly overruled portions of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), that had treated "all governmental attempts to influence a woman's decision on behalf of the potential life within her as unwarranted." 505 U.S. at 876. Those decisions, the Court explained, were "incompatible with the recognition that there is a substantial state interest in potential life throughout the pregnancy." Id. (emphasis added).

Stenberg reinforces these principles. In invalidating the Nebraska statute for failure to provide any health exception, the Court cited Casey for the unexceptional proposition that, "[s]ince the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation." Id. at 930. And in rejecting Nebraska's argument that a health exception was unnecessary because its restrictions would never impose any health risks, the Court framed the relevant question as whether the restrictions, absent any exception, would "impos[e] significant health risks" on women. Id. at 931 (emphasis added). The Court stressed repeatedly that it would "not revisit th[e] legal principles" established in Casey (530 U.S. at 921) and that its "holding does not go beyond" Casey (id. at 931), but is simply a "straightforward application" of that decision (id. at 938).

Also consistent with Casey, Justice O'Connor made clear in her concurring opinion in Stenberg that, in the context of abortions conducted before fetal viability, the Constitution requires a health exception only where the absence of such an exception would impose an "undue burden" on women seeking abortions. See 530 U.S. at 947-951. Justice O'Connor explained that a ban on partial birth abortion, limited to the D&X procedure and qualified by a health exception, would therefore be constitutional:

As we held in Casey, an abortion regulation constitutes an undue burden if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus." 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." 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.

Id. at 950-951 (quoting Casey, 505 U.S. at 877, 884) (citations omitted).

B. The District Court Erred in Invalidating Ohio's Restriction of Partial Birth Abortions Performed After Fetal Viability

In the context of abortions performed after fetal viability, Ohio has provided exactly the health exception required by the Supreme Court. From Roe to Stenberg, the Court consistently has held that the Constitution requires an exception to state abortion restrictions "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." See Stenberg, 530 U.S. at 930; Casey, 505 U.S. at 879; Roe, 410 U.S. at 164-165. The Ohio statute provides such an exception where a partial birth abortion is "necessary, in reasonable medical judgment, to preserve the life or health of the mother." Ohio Rev. Code 2919.151(B) & (C). On that ground alone, the Ohio statute is plainly constitutional as applied to partial birth abortions conducted after fetal viability.

The district court nevertheless held that Ohio's health exception was inadequate in that context. It construed the word "necessary" as used in Casey and Stenberg to mean something substantially different from the word "necessary" as used in the Ohio statute. Specifically, it construed Stenberg as holding that a partial birth abortion is "necessary," for purposes of the constitutionally compelled health exception, whenever it is "'simply safer than other alternatives'" available to women needing an abortion for health reasons. See 162 F. Supp. 2d at 961 (quoting 114 F. Supp. 2d at 695). And it simultaneously construed the Ohio statute as permitting partial birth abortion only where that specific procedure, "as opposed to abortion generally," is "absolutely necessary" to preserve a woman's life or health. Id. Both of these holdings were in error.

1. Casey and Stenberg require an exception to state abortion restrictions only where "necessary" to protect the life or health of the mother. See Stenberg, 530 U.S. at 930; Casey, 505 U.S. at 879. As a matter of ordinary usage, it is odd to say that a partial birth procedure is "necessary" whenever it is "simply safer" than other available methods of abortion, regardless of how small the difference in safety. Stenberg said no such thing. Instead, it stated that the Constitution requires a health exception to state abortion restrictions whenever application of those restrictions would "impos[e] significant health risks" on women. 530 U.S. at 931 (emphasis added); see also id. at 932 (focusing on "significant health risks for women"); id. at 936 (focusing on whether exception "significantly obviates health risks in certain circumstances"). Thus, the Court struck down Nebraska's statute based on a finding that "a statute that altogether forbids D&X creates a significant health risk." Id. at 938 (emphasis added).

It is no accident that Stenberg required a "significant" health risk to trigger constitutional protection. In Casey, the Supreme Court recognized that there is a "substantial state interest in potential life throughout the pregnancy," and that abortion restrictions are therefore permissible unless they "plac[e] a substantial obstacle in the path of a woman seeking an abortion of an nonviable fetus." 505 U.S. at 877 (emphasis added). A fortiori, the same principles must apply to restrictions of abortion conducted after fetal viability, where "the State's interest in life" is even stronger. See id. at 869. The district court improperly frustrated that interest in holding that even de minimis health effects would render State abortion restrictions unconstitutional after fetal viability.

2. The district court erred further in refusing to construe the Ohio statute to make it constitutional. It is well-settled, of course, that courts should construe statutes so as to avoid constitutional problems. See, e.g., Frisby v. Schultz, 487 U.S. 474, 483 (1988) (discussing "the well-established principle that statutes will be interpreted to avoid constitutional difficulties"); Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). In particular, federal courts should not invalidate state statutes that could reasonably be construed to be constitutional. As the Supreme Court has explained, "a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts." Erznoznik v. Jacksonville, 422 U.S. 205, 216 (1975).

In this case, because the Ohio statute parrots applicable constitutional requirements almost verbatim, a saving construction is obviously available. If an abortion is "necessary" for purposes of the constitutionally required health exception whenever application of a state abortion restriction would impose significant health risks on the mother, as Casey and Stenberg held, the Ohio statute can readily be construed to allow partial birth abortion in these circumstances, because there is no justification for construing the word "necessary", as used in the Ohio statute, to mean something different from the word "necessary" as used in Casey and Stenberg. For the same reason, the Ohio statute also could readily be construed to be constitutional even if an abortion were "necessary" for purposes of the constitutionally required health exception whenever application of a state abortion restriction would impose an insubstantial or de minimis health risk (as the district court erroneously concluded). Indeed, the only construction of the Ohio statute that would make it clearly unconstitutional is its least plausible construction: that a partial birth abortion is "necessary" only when "absolutely necessary," 162 F. Supp. 2d at 961, a phrase that nowhere appears in the Ohio statute, to protect the mother's life or health. See also Stenberg, 530 U.S. at 937 ("[t]he word 'necessary' ... cannot refer to an absolute necessity"). The district court erred in straining so hard, not to make the Ohio statute constitutional, but to make it unconstitutional.

C. The District Court Erred in Invalidating Ohio's Restriction of Partial Birth Abortions Performed Before Fetal Viability

The district court committed similar analytical errors in striking down the Ohio statute as applied to abortions performed before fetal viability: it ignored the striking similarity between Ohio's health exception and others previously upheld; it construed Stenberg to require a health "exception" that would swallow up Casey's undue burden rule; and it refused to adopt obvious constructions that would make the Ohio statute constitutional even under the overly rigid standards that it erroneously had adopted.

1. The Ohio health exception is virtually identical to a "medical emergency" exception upheld by the Supreme Court in Casey as sufficiently safeguarding a woman's health. In Casey, the Court unanimously upheld as constitutionally sufficient a "medical emergency" exception to abortion restrictions for women with a "condition which ... so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." See 505 U.S. at 879-880 (majority); id. at 978-979 (Rehnquist, C.J., dissenting). The Ohio statute similarly provides an exception for women with a "medically diagnosed condition that so complicates the pregnancy of a woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function." Ohio Rev. Code 2919.151(C) & (A)(5). These textual similarities demonstrate the constitutionality of Ohio's health exception.

We recognize that Casey did not involve partial birth restrictions, but the nature of the underlying abortion restriction is irrelevant to the question whether, or the extent to which, the Constitution requires an exception to abortion restrictions to safeguard health. Applying the undue burden standard, Casey found the "medical emergency" exception constitutionally sufficient because it prevented the imposition of a "'significant threat to the life or health of a woman.'" Id. at 879-880 (emphasis added and citation omitted). If such an exception sufficiently protects health when the State restricts the timing of abortions, see id. at 881-887 (24-hour waiting period); id. at 899-900 (parental consent requirement for minors), it also should sufficiently protect health when a State restricts the method of abortions. As this Court explained in Voinovich, the undue burden analysis encompasses both kinds of restrictions, and, "[i]n upholding the medical emergency exception, the Casey Court was saying that in the pre-viability context, the medical emergency exception did not place a substantial obstacle in the path of a woman seeking an abortion." 130 F.3d at 208 (emphasis added). While a different analysis would be necessary for an outright ban of abortion, see id., the same analysis should govern pre-viability restrictions on the timing or method of obtaining an abortion. Under that analysis, Ohio's health exception is plainly constitutional. See Casey, 505 U.S. at 879-880.

2. The district court erred in ignoring not only the specific exception upheld in Casey, but also the undue burden standard established in that case. As explained above, the undue burden standard permits restrictions that do not impose a "substantial obstacle" to women seeking abortions prior to fetal viability. See 505 U.S. at 877. It is thus plainly inconsistent with the district court's holding that an exception is constitutionally compelled, and that regulation of the methods of abortion is thus constitutionally impermissible, whenever the restricted method may be "simply the safest" means of elective abortion, 162 F. Supp. 2d at 940. In eliminating any substantiality requirement as the threshold for constitutional protection, the district court ignored Casey's central insight that "not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right." 505 U.S. at 873. And in holding that any incremental impact on safety is impermissible, no matter how small, the district court gutted Casey's central holding that States have a "substantial ... interest in potential life throughout the pregnancy," and can therefore impose pre-viability restrictions not only to protect the health of the mother, but also (absent an undue burden) to "express profound respect for the life of the unborn." See id. at 876-877.

Nothing in Stenberg permits Casey to be so undermined. To the contrary, the Court in Stenberg stressed that its holding, invalidating an abortion restriction with no health exception, "does not go beyond," and is merely a "straightforward application" of, Casey. See 530 U.S. at 931, 938. Moreover, to the extent that Stenberg addressed the scope of the requisite health exception at all (in responding to Nebraska's argument that no such exception was necessary), it focused on whether the lack of an exception would "impos[e] significant health risks" on women seeking abortions. See id. at 931 (emphasis added). Finally, Stenberg held only that the Constitution requires "the same" health exception in the context of pre-viability restrictions (which are governed by the undue burden standard) that it requires in the context of post-viability restrictions (where States have even greater latitude to restrict abortion). See id. at 930. Accordingly, the health "exception" cannot properly undermine Casey's undue burden rule.

3. Finally, the district court erred in failing to adopt a saving construction of the Ohio statute. In addressing abortions conducted before fetal viability, the district court raised no objection to the statutory requirement that a partial birth abortion be "necessary, in reasonable medical judgment, to preserve the life or health of the mother." Ohio Rev. Code 2919.151(B). Instead, the court focused on the statutory requirement that the health risk involve a "medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function." Id. 2919.151(A)(5). In particular, it construed the requirement of a "medically diagnosed condition" to preclude application of the exception whenever a partial birth abortion was safer (whether incrementally or substantially) than other available methods of elective abortion. See 162 F. Supp. 2d at 941.

The district court's construction was in error, as illustrated by an example. The district court supposed that a partial birth abortion might be safer than other available methods in cases where, because the partial birth procedure "requires fewer instruments to be inserted into the uterus," it would "resul[t] in a lower risk of infection, less blood loss, and a smaller chance of causing trauma to the cervix." Id. at 942. In such cases, however, the health risk plainly would arise from a "medically diagnosed condition" (i.e., susceptibility to infection, bleeding, and trauma of the cervix). Moreover, that condition would "complicat[e] the pregnancy," by increasing the risk of some methods of ending it. If the complications threatened a "substantial and irreversible impairment of a major bodily function," the health exception would apply; and if not, application of the restriction would not involve "undue" burdens or "significant" impediments. See Casey, 505 U.S. at 879-880.

The district court was compelled by federal law to construe the Ohio statute, if reasonably possible, to make it constitutional. See, e.g., Frisby, 487 U.S. at 483; Erznoznik, 422 U.S. at 216. Such a construction is obviously possible here, because the health exception provided by Ohio is virtually identical to the medical emergency exception unanimously upheld in Casey. As we have demonstrated, the Ohio statute can readily be construed to be consistent with the undue burden standard required under Casey. And as Ohio has demonstrated (Br. at 40-41), its statute can be construed to be consistent even with the incremental burden standard erroneously adopted by the district court. Whatever the best construction of the statute, the district court erred in holding it unconstitutional.

* * * *

This case involves one particular method of abortion that 30 States and wide majorities of both Houses of Congress have sought to restrict. The American Medical Association has described the partial birth method of abortion as "ethically different from other destructive abortion techniques" because the fetus is "killed outside of the womb," where it has "an autonomy which separates it from the right of the mother to choose treatments for her own body." AMA Board of Trustees, Factsheet on H.R. 1122 (June 1997), quoted in Brief for United States Catholic Conference et al. as Amici Curiae 19 n.19, Stenberg (No. 99-830) (emphasis added). The Association of American Physicians and Surgeons agrees that the partial birth method of abortion "is aberrant and troubling because the technique ... blur[s] the medical, legal, and ethical line between infanticide and abortion." Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 27, Stenberg (No. 99-830). The Stenberg majority acknowledged that partial birth abortion is "horrifying" to many (530 U.S. at 923), and the dissenters stressed "the resemblance between the partial birth abortion procedure and infanticide." Id. at 1007 (Thomas, J., dissenting); id. at 963 (Kennedy, J., dissenting) ("D&X's stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the [medical] profession and society").

Nothing in Stenberg precludes the States from restricting this one especially troubling method of abortion. Stenberg holds only that a ban on the partial birth procedure must contain an exception to safeguard women's health and cannot also prohibit the widely-used D&E method of abortion. See 530 U.S. at 930-946. Because the Ohio statute readily satisfies these requirements, the district court erred in striking it down.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

Respectfully submitted,

ROBERT D. McCALLUM, JR.
Assistant Attorney General

GREGORY G. LOCKHART
United States Attorney

GREGORY G. KATSAS
Deputy Assistant Attorney General

ERIC D. MILLER
(202) 514-2754
Attorney, Appellate Staff
Civil Division, Room 9131
Department of Justice
Washington, D.C. 20530-0001

Attorneys for Amicus Curiae
United States of America

FEBRUARY 2002


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Posted 19 May 2002.

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