Wednesday, February 1, 2006

One Lone Vote Against Infanticide
Justice Straub's Stand for Life

Yesterday in Manhattan, a Second Circuit U.S. Court of Appeals judge named Chester J. Straub cast the dissenting vote in a 2-1 decision striking down the Partial-Birth Abortion Ban Act. (A California court also struck down the ban on the same day.)

Straub's dissent is masterful and I highly recommend you download and read the whole thing (requires Adobe Reader). [UPDATE: Reader Bryan L. Fordham has put the entire dissent into HTML format, with links to individual pages.] Following are some excerpts; asterisks mark the points where I've skipped sentences or sections. I've also bolded some sentences for emphasis.

On a related note, I'm happy to announce that I've decided to marry a great Catholic legal mind. I just haven't met him yet. With brilliant men of integrity like Straub, Alito, and Roberts, Catholic lawyers and judges are the new rock stars.

CHESTER J. STRAUB, Circuit Judge, dissenting:
I respectfully dissent. In passing the Partial-Birth Abortion Ban Act of 2003 (the “Act”), Congress sought to prohibit the “gruesome and inhuman procedure” of delivering a fetus into this world only to destroy it as it reaches the threshold of birth. Pub. L. No. 108-105, § 2(1), 117 Stat. 1201, 1201, codified at 18 U.S.C. § 1531. This procedure, Congress found, blurs the line between abortion and infanticide and distorts the ethical duties of physicians. Id. § 2(14)(G), (J), (O), 117 Stat. at 1205-06. Moreover, Congress specifically found that the “partial-birth abortion” procedure — generally referred to as “Dilation and Extraction” or the “D & X” procedure — is “never medically necessary” and in fact “poses serious risks to a woman’s health.” Id. § 2(13), 117 Stat. at 1203-04. It further found that there is “no credible medical evidence” that the procedure is safer than other abortion procedures. Id. § 2(14)(B), 117 Stat. at 1204.

The District Court, in this case, agreed with Congress in many respects. After hearing all of the evidence, the District Court found that the government’s expert witnesses had “reasonably and effectively refuted Plaintiffs’ proffered bases for the opinion that D & X has safety advantages over other second-trimester abortion procedures.” Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436, 479 (S.D.N.Y. 2004) (N.A.F.). The District Court found that many of the plaintiffs’ proffered bases are not “credible; rather they are theoretical or false.” Id. at 480.

Nonetheless, the District Court held the Act unconstitutional upon finding a “division of medical opinion,” or a “disagreement in the medical community,” about the purported safety advantages of D & X. See id. at 481-82. According to the District Court, Stenberg v. Carhart, 530 U.S. 914 (2000), renders irrelevant Congress’s findings — and, indeed, the District Court’s own findings — on the medical necessity of the D & X procedure. The District Court stated that the question is not whether “Congress was reasonable in its finding that D & X is never medically necessary. Instead, the relevant inquiry . . . is whether Congress reasonably determined, based on substantial evidence, that there is no significant body of medical opinion believing the procedure to have safety advantages for some women.” N.A.F., 330 F. Supp. 2d at 488.

In my view, the District Court’s fundamental error — which is reflected in the majority’s opinion as well — is to collapse the inquiry into whether a “division of medical opinion” exists and thereby discard any role for congressional findings about the actual necessity of the procedure. Stenberg requires a health exception “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” Stenberg, 530 U.S. at 938. While a “division of medical opinion” may factor into the presence or absence of “substantial medical authority,” there must be more to the inquiry than simply counting heads. The medical opinion in favor of a particular view — in this case, the advantages of D & X — must be supported by credible medical explanations and evidence. Whether such medical evidence exists is a factual issue, and I believe we owe deference to Congress’s factual findings, supported by the District Court’s own findings, that D & X is never medically necessary and that there is no “credible medical evidence” to the contrary. See Partial-Birth Abortion Ban Act, § 2(1), (13), (14)(B), 117 Stat. at 1201, 1203-04. At least some consideration of and deference to congressional findings is appropriate in the area of abortion, just as it would be on factual matters affecting economic or environmental regulation, campaign finance reform, or the necessity of civil rights measures to remedy

* * *

Unlike the New Hampshire statute, see id. at 964-65, the Act does not regulate access to all
methods of abortion. As women would have unfettered, immediate access
to induction and D & E, methods of abortions that have been proven to
be safe, scientifically established, and available, see infra Part
I.A.2, there is no requirement that the Act contain a health exception.

* * *

I recognize that the Supreme Court’s abortion jurisprudence does
not involve rational basis review, or even the kind of intermediate
scrutiny that led the Turner Court to apply the “substantial evidence”
standard to congressional factfinding. At the same time, there is no
reason that the overarching and fundamental principle of deference to
congressional factfinding — both as a matter of respect for the
lawmaking power and as a matter of institutional competence — should
not apply in the context of regulating the methods of abortion.
Congress has a legitimate interest in regulating medical techniques of
“[A] state may properly assert important interests in
safeguarding health, in maintaining medical standards, and in
protecting potential life.” Roe v. Wade, 410 U.S. 113, 154 (1973).
Indeed, in Roe, the Court not only reaffirmed the State’s “legitimate
interest in seeing to it that abortion, like any other medical
procedure, is performed under circumstances that insure maximum safety
for the patient,” but it specifically noted that, because “the risk to
the woman increases as her pregnancy continues[,] . . . the State
retains a definite interest in protecting the woman’s own health and
safety when an abortion is proposed at a late stage of pregnancy.”

Id. at 150.

In this case, Congress has made specific findings, including that
the D & X procedure “is never necessary to preserve the health of a
woman” and that it “poses serious risks to a woman’s health.”
Birth Abortion Ban Act, § 2(13), 117 Stat. at 1203-04. In making
these findings, Congress did not challenge or otherwise dispute that
Stenberg controls as a matter of constitutional law. See id. § 2(1)-
(7), 117 Stat. at 1201-02. While Congress may not invade the Supreme
Court’s province of interpreting the Constitution, it is not so bound
by the Court’s determination of facts that have relevance beyond a
particular case. Whether a particular medical procedure is safe,
necessary, or risky is a question of fact that has a definite answer.
Based on Congress’s institutional competence over the judiciary with
respect to such legislative facts, I believe that we owe Congress at
least some level of deference when it makes these determinations. At
a minimum, we should be required to consider those findings and how
they may affect the constitutionality of the partial-birth abortion
Congress made the following relevant findings: (1) D & X was
“unnecessary to preserve the health of the mother”; (2) D & X “poses
serious risks to the health of a woman undergoing the procedure”; (3)
“[t]here is no credible medical evidence that [D & X procedures] are
safe or are safer than other abortion procedures”; (4) no expert,
including the doctor who invented the procedure, has been able to
“identif[y] a single circumstance during which a partial-birth
abortion was necessary to preserve the health of a woman”; and (5)
“[a] ban on [D & X] will therefore advance the health interests of
pregnant women seeking to terminate a pregnancy.” Partial-Birth
Abortion Ban Act § 2(2), (14)(A)-(F), 117 Stat. at 1201, 1204-05. In
the discussion above, I have focused on the general principle of
deference to Congress’s fact-finding, rather than any specific
standard of review, because these findings are well supported and
worthy of deference under any standard.

The evidence in the congressional record solidly supports
Congress’s conclusion that no medical circumstance requires a D & X to
protect a woman’s health. Numerous doctors testified before, or
provided letters to, Congress that, in their experience, they have
never had a patient who required the D & X procedure. See, e.g., The
Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before
the House Comm. on the Judiciary, 104th Cong. 109 (1995) (hereinafter
“1995 House Hearings”) (Statement of Dr. Nancy Romer) (“I have never
had a patient who required the [D & X] procedure for maternal illness
or fetal malformations.”); The Partial-Birth Abortion Ban Act of 2002:
Hearing on H.R. 4965 Before the Subcomm. on the Const. of the House
Comm. on the Judiciary, 107th Cong. 26 (2002) (hereinafter “2002 House
Hearings”) (Statement of Dr. Curtis Cook) (“Never in the more than 10
years that I have been providing perinatal care to women with
complicated pregnancies have I ever experienced a single clinical
situation where the late-term abortion procedure being considered
before this Committee has ever been required or even considered a
superior option clinically to other well-known and readily available
medical and surgical options.”); Partial-Birth Abortion Ban Act of
2003: Hearing on H.R. 760 Before the Subcomm. on the Const. of the H.
Comm. of the Judiciary, 108th Cong. 107 (2003) (hereinafter “2003
House Hearings”) (Letter from Dr. Byron C. Calhoun) (“In my over 14
years as a Maternal-Fetal Medicine specialist I have never used or
needed the [D & X] technique to care for my complicated or life
threatening conditions that require the termination of a pregnancy.”);
id. at 110 (Letter from Dr. T. Murphy Goodwin) (“I have not
encountered a case in which what has been described as partial-birth
abortion is the only choice, or even the better choice among
alternatives, for managing a given complication of pregnancy.”); id.
at 117 (Letter from Dr. Lewis Marola) (“Never, ever, in our years of
practice have we seen a situation which warrants implementation of [D
& X].”).

Other sources before Congress confirmed these doctors’
experience, indicating that there are no circumstances in which the D
& X procedure would be necessary to preserve the health of the mother.
See, e.g., 2002 House Hearings, supra, at 86-87 (Diane, M. Gianelli,
Outlawing Abortion Method, American Medical News, Nov. 20, 1995, at 3)
(reporting that Dr. Hern, author of Abortion Practice, a “widely used
textbook,” “could not imagine a circumstance in which this procedure
would be safest”); see also 2003 House Hearings, supra, at 7
(Statement of Dr. Mark G. Neerhof) (“None of these risks are medically
necessary because other procedures are available to physicians who
deem it necessary to perform an abortion late in pregnancy.”); id. at
105 (Letter from Dr. Watson Bowes) (stating that based on his
experience with high-risk and complicated pregnancies, D & X “is not
the only option for terminating these pregnancies in the safest
possible manner”); id. at 106 (Letter from Dr. Nathan Hoeldtke)
(writing that he could not “imagine” any case where “an intact D & X
[would] be medically necessary”); id. at 146 (American Medical
Association (“AMA”) Fact Sheet) (“AMA’s expert panel, which included
a ACOG representative, could not find ‘any’ identified circumstance
where [D & X] was ‘the only appropriate alternative.’”). While the
American College of Obstetricians and Gynecologists (“ACOG”) contended
that D & X “may be the best or most appropriate procedure” in an
unspecified “particular circumstance,” its assertion was wholly
speculative; “[a] select panel convened by ACOG could identify no
circumstances under which this procedure . . . would be the only
option to save the life or preserve the health of the woman.” 2003
House Hearings, supra, at 200 (ACOG Statement of Policy).

Evidence in the congressional record further indicated that, even
in an emergency, D & X is not appropriate or medically necessary.
See, e.g., 2002 House Hearings, supra, at 8 (Statement of Dr. Kathi
Aultman) (“In an emergency situation, when immediate delivery is
necessary, D & X would not be used because it would take too long.”);
see also 2003 House Hearings, supra, at 97 (Summary of Testimony of
Dr. William Cashore Before the Health & Welfare Comm. of the R.I.
State S.) (“The 1-3 day period of cervical preparation . . . belies
the ‘emergency’ nature of the procedure.”); id. at 114 (Letter from
Dr. Camilla C. Hersh) (“In the event of a truly life threatening
complication of pregnancy, the days of delay involved substantially
add to the risk of loss of life of the mother.”).

It is undisputed that no peer-reviewed studies or data exists
showing that D & X is either safe or safer than other abortion

* * *

The District Court’s own findings support Congress’s findings
that D & X is never medically necessary and not safer than other safe
abortion procedures. The District Court did “not believe that many of
Plaintiffs’ purported reasons for why D & X is medically necessary are
credible; rather they are theoretical or false.” N.A.F., 330 F. Supp.
2d at 480. Furthermore, it found that “[t]he Government’s experts,
especially, Dr. Clark, demonstrated that some of Plaintiffs’ reasons
necessitating D & X are incoherent; other reasons were shown to be
merely theoretical.” Id. at 479-80.

The District Court was correct in finding that no evidence
supported the necessity of D & X. As an initial matter, the evidence
showed that very rarely does preserving a women’s health ever require
an abortion. See Trial Tr. at 352 (Dr. Grunebaum testifying that it
was “rare” that pregnancies are terminated because of a serious
medical condition); id. at 1743 (Dr. Lockwood testifying that it was
rare that maternal health would require an abortion prior to
viability); id. at 2315 (Dr. Clark testifying that such situations
were “very rare”). The testimony of the government’s witnesses
supports the contention that in the rare case where maternal health
might require an abortion, D & X was never necessary to preserve the
woman’s health. See id. at 1760 (Dr. Lockwood could not think of any
circumstance where D & X would be necessary to preserve maternal
health); id. at 2311 (Dr. Clark testifying that “[u]nder no
circumstances is D & X abortion necessary to preserve the life or
health of the mother. . . . Under no circumstances would the abolition
of this procedure in any way jeopardize the life or health of any
mother regardless of what medical conditions she may have.”); id. at
2313 (Dr. Clark testifying that “I can’t imagine any medical condition
. . . in which this D & X procedure might be helpful to me, as someone
who spent my life caring for critically ill women, in which it might
be helpful to me in preserving the life or health or well-being of the
mother. I can’t come up with one.”).

Furthermore, the plaintiffs and their experts agreed that they
had never encountered a situation where D & X was the only available
procedure or where the mother’s health required a D & X. See id. at
261 (Dr. Grunebaum responding “[a]bsolutely not” to the question of
whether D & X is “the only method available for performing abortions
in any given circumstance”); id. at 491 (Dr. Johnson testifying that
“I don’t believe there is ever a condition where [D & X] would be the
only procedure that would be available or an option to perform” and
agreeing with the government’s statement that there was no “maternal
complication that would either require [D & X] or make [D & X] the
only procedure to be performed”); id. at 1369 (Dr. Weiss stating that
he could not “think of a circumstance where it would be required to do
an [D & X] for a maternal health condition”) ; id. at 1683 (Dr. Chasen
agreeing that his study showed that D & X “is rarely used in cases of
a maternal medical problem”).

* * *

In sum, Congress had before it compelling evidence, confirmed by
the District Court, that the D & X procedure is never medically
necessary and that there is a lack of credible evidence in support of
the procedure. The trial evidence supports Congress’s judgment that
no maternal health condition required the use of D & X. Nor is D & X
preferable or safer than D & E in any particular circumstance. The
alleged safety advantages are wholly unproven and hypothetical, and,
to quote the pithy phrase of the District Court, “Intuition does not
equate to scientific fact.” Nat’l Abortion Fed’n v. Ashcroft, 330 F.
Supp. 2d 436, 480 (S.D.N.Y. 2004) (N.A.F.).

* * *

Rather than defer to, or even consider, these finding by
Congress, the District Court and the majority hold that D & X’s
ultimate medical necessity is not the issue — that the issue is simply
whether D & X is supported by “substantial medical authority,” which
has been equated to a “division of medical opinion.” In my view, the
framing of the issue by the District Court and the majority is not
required by Stenberg and distorts not only the constitutional balance
between Congress and the Court, but also the balance between the
interests of women in terminating their pregnancies and of the State
in regulating as “gruesome and inhumane” a procedure as D & X.

For the sake of completeness, I would also reject all of the
plaintiffs’ other arguments for holding the statute unconstitutional.
The Act does not impose an undue burden on a woman’s right prior
to viability to terminate her pregnancy. Specifically, the
requirement that the physician “deliberately and intentionally”
deliver the living fetus to one of the specified anatomic landmarks
“for the purpose of performing an overt act,” 18 U.S.C. §
1531(b)(1)(A), requires that the physician “consciously desire” to
violate the Act. See United States v. Townsend, 987 F.2d 927, 930 (2d
Cir. 1993) (stating that the terms “deliberately” and “intentionally”
are synonyms of the more common mens rea term “purposefully”); see
also United States v. Bailey, 444 U.S. 394, 404 (1980) (“[A] person
who causes a particular result is said to act purposefully if he
consciously desires the result happening from his conduct . . . .”
(internal quotation marks omitted)). In a D & E, the physician
intends to dismember the fetus and remove the pieces and not to
deliver the fetus to either of the anatomical landmarks for the
purpose of committing an overt act that the fetus cannot survive. See
Carhart v. Ashcroft, 331 F. Supp. 2d 805, 1033 (D. Neb. 2004), aff’d
sub nom. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), petition
for cert. filed, No. 05-380 (Sept. 23, 2005). Moreover, if due to
complications during a D & E procedure, the fetal head is crushed,
disarticulated, or even pierced and suctioned while it is within the
mother’s body, the Act is not violated unless the physician began the
procedure with a conscious desire to do so. See id. at 1033
(“[U]nless a physician begins a particular abortion with a pre-
meditated and specific intent to perform the abortion in the manner
the Act forbids, the physician has not acted in violation of the
statute, even if it so happens, as he or she proceeds, that the
fetus’s head gets stuck and must be crushed, or its contents removed,
to complete the delivery.”).

For the same reason, I would also hold that the act is not vague.
See Hill v. Colorado, 530 U.S. 703, 732 (2000) (holding that a statute
was not vague as it contained the intent requirement that the
violation be “knowing”). Finally, the Act’s life exception is
constitutional. The word “necessary” in the statute has the same
meaning as it does in the phrase “necessary, in appropriate medical
judgment, for the preservation of the life . . . of the mother.”
Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (quoting Planned
Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 879 (1992));
see also Simopoulos v. Virginia, 462 U.S. 506, 510 n.2 (1983)
(affirming conviction under abortion statute that contained the same
life exception).

* * *

Some argue that the removal of a fetus during a D & X is not
“birth.” See Farmer v. Planned Parenthood of Cent. N.J., 220 F.3d
127, 143 (3d Cir. 2000). However, “birth” is the “passage of the
offspring from the uterus to the outside world.” Dorlands Illustrated
Medical Dictionary 207 (27th ed. 2000). The removal of a fetus from
its mother surgically does not mean that it is not born, as a fetus
removed from its mother via a cesarean section is certainly “born.”

Moreover, I disagree with the contention of the Farmer court that the
intent of the mother governs whether a child is born or aborted. See
Farmer, 220 F.3d at 144. A child born prematurely, even though its
mother does not intend it to be born, is not necessarily an abortion.
Indeed, the statute that the majority relies on for its definition of
a “person” defines “born alive” to include “any member of the species
homo sapiens . . . regardless of whether the expulsion or extraction
occurs as a result of natural or induced labor, cesarean section, or
it may not be “deprive[d] . . . of life . . . without due process of
law,” U.S. Const. amend. XIV, § 1. At this point, the mother’s right
to privacy, autonomy, and bodily integrity are waning in importance,
and the fetus’s increases in strength. Just as viability is the point
during the gestation of the fetus when the interest of the State in
potential life become paramount, see Casey, 505 U.S. at 869, birth14
induced abortion.” 1 U.S.C. § 8. If the intent of the mother
controls the scope of her right to destroy her offspring, there is no
reason why she should not be able to destroy the child after it has
completely been separated from her body.

I disagree with Chief Judge Walker that the fact that the Act is
not limited to post-viability abortions necessarily vitiates the
compelling interest of the State in preventing the procedure to
distinguish abortion from infanticide. Once a fetus is born, its
viability ceases to be relevant to determining the constitutional
protections to which it is entitled.

* * *

We should consider independently whether providing
an unknown number of women a marginal health benefit outweighs both
the fetus’s emerging right to life and the State’s interests in
protecting actual and potential life.

In addition to vindicating the right to life of those in the
process of being born, the State has a compelling interest in
protecting the line between abortion and infanticide
— the second
significant difference from the Nebraska statute. Congress, inter
alia, found that partial-birth abortion “blurs the line between
abortion and infanticide,” Partial-Birth Abortion Ban § (2)(14)(O),
117 Stat. at 1206, and that failing to prohibit the practice would
“coarsen society to the humanity of not only newborns, but all
vulnerable and innocent human life,” id. § (2)(14)(N). There is
undoubtably a compelling state interest in preventing the killing of
newborns. Infanticide, like suicide, is a “serious public-health
problem,” which the State has an interest in “studying, identifying,
and treating its causes.” Glucksberg, 521 U.S. at 730. This horrific
crime occurs in the United States and throughout the world with
alarming frequency. See, e.g., Amy D. Wills, Neonaticide: the
Necessity of Syndrome Evidence When Safe Haven Legislation Falls
Short, 77 Temp. L. Rev. 1001, 1004 (2004) (noting that 250 homicides
a year involve infants being killed within the first twenty-four hours
of life); see also Parents of Dead Infant Sought, Chi. Sun Times, Jan.
16, 2006, at 14 (reporting that a newborn was found dead in a trash

The majority offers the definition in 1 U.S.C. § 8(a) of “born
alive” for the proposition that Congress has already drawn “a line”
against infanticide. While the statute includes infants that have
been “complete[ly] expel[led] or extract[ed] from his or her mother,”
it does not exclude humans at a prior stage of development from the
term. Indeed, Congress specifically provided that “[n]othing in this
section shall be construed to affirm, deny, expand, or contract any
legal status or legal right applicable to any member of the species
homo sapiens at any point prior to being ‘born alive.’” Id. § 8(c).
Regardless of whether a partial-birth abortion terminates the life of
a statutory “person,” allowing a physician to destroy a child as long
as one toe remains within the mother would place society on the path
towards condoning infanticide. Preventing the death of an infant in
the process of being born safeguards those infants who have been
completely separated from their mothers.

I find the current expansion of the right to terminate a
pregnancy to cover a child in the process of being born morally,
ethically, and legally unacceptable.

IV. Conclusion
Congress’s determination that D & X is never medically necessary
to protect a woman’s health was well founded and supported by the
District Court’s opinion. Additionally, I do not believe that the
right to terminate a pregnancy extends to the destruction of a
partially born fetus or overrides the State’s compelling interest in
preventing infanticide. As none of the arguments advanced by the
plaintiffs convinces me that the Act is unconstitutional, I do not
believe that Ayotte v. Planned Parenthood of N. New England, __U.S.__,
126 S Ct. 961 (Jan. 18, 2006) is applicable. I understand, however,
that based on the majority’s finding that the Act is unconstitutional,
it is appropriate for the majority to request further briefing from
the parties on the proper remedy.

I respectfully dissent.