One common legislative strategy was to enact parental consent statutes for minors seeking to procure abortions. In fact, in Casey itself, the Court upheld the Commonwealth of Pennsylvania’s requirement that minors must obtain the informed consent of at least one parent or guardian prior to obtaining an abortion. This was despite the fact that Casey also upheld Roe’s core holding of an individual constitutional right to abort an unborn child. The Court deemed that such parental consent requirements do not pose an “undue burden” on a woman’s right to abort an unborn child.
In Ayotte v. Planned Parenthood of Northern New England, a case that reached the Court in 2006, I helped defend the constitutionality of the state of New Hampshire’s own parental notification law. I was Texas SG, and we filed an amicus brief at the Court on behalf of Texas and seventeen other states. In our brief, we argued that New Hampshire’s parental notification law was constitutional, and that forty-three out of fifty states had laws requiring either parental notification or parental consent for a minor to get an abortion. These state laws included a judicial bypass for abusive parents, but, in the ordinary case, these laws existed, in Justice Kennedy’s words, so that a parent or guardian could give a “lonely or even terrified minor advice that is both compassionate and mature.”
We argued, procedurally, that the court of appeals had erred in ruling broadly and striking down New Hampshire’s law. The Court ended up agreeing with our narrow procedural argument, and that produced a rare unanimous abortion decision. By a vote of 9–0, the Court vacated the lower court’s judgment, which in turn allowed the New Hampshire statute to stand.
In addition to parental consent requirements, the pro-life movement’s incremental legislative effort to change hearts and minds on the issue of life has also included passing legal prohibitions of the gruesome practice of so-called “partial-birth abortion.” As we saw with Gosnell, partial-birth abortion is a late-term procedure in which the physician partially delivers the unborn child and then, with the infant’s head still in the mother’s womb, uses scissors and forceps to pierce the skull and end the life of the child. Even many Americans who consider themselves pro-choice are horrified at the prospect of late-term abortions, and of partial-birth abortions in particular.
And so nearly thirty states across the country passed laws prohibiting this barbaric procedure. But because the Court had seized control of the abortion issue from state legislatures, declaring abortion to be a constitutionally protected right in Roe and Casey, activists on the left immediately brought litigation challenging those laws. And in 2000, the Court considered a challenge to Nebraska’s partial-birth abortion law, in the case of Stenberg v. Carhart. Showing just how far the Court had gone, by a 5–4 vote the Court struck down Nebraska’s law, concluding that it was unconstitutional because it lacked a sufficiently broad exception for the “health” of the mother.
To be sure, the Nebraska law did include an exception to protect the “life” of the mother. But five justices on the Supreme Court concluded that was not enough and that partial-birth abortion must be allowed whenever a physician concluded it advanced broader “health” concerns, including the avoidance of depression or other possible harm to a woman’s mental health. Because an abortion doctor—whose entire revenue stream comes from performing as many abortions as possible—could diagnose depression or mental health concerns with virtually every abortion, the effect of the Supreme Court’s ruling was to demand that the exception be written so broadly that it would eliminate the rule. Thus, notwithstanding the overwhelming national bipartisan consensus of voters against partial-birth abortion, the Court decreed that the states lacked the constitutional authority to effectively prohibit the practice.
Shortly thereafter, George W. Bush was elected president, and in 2003 he signed into law a federal prohibition on partial-birth abortion. Following the well-established pattern, activist groups immediately returned to the courts, challenging that law. The named plaintiff, LeRoy Carhart, was in fact the very same abortion doctor who had challenged the Nebraska state law in Stenberg. And once again, the case returned to the Supreme Court in the form of Gonzales v. Carhart.
As Texas SG, I authored a brief on behalf of Texas and twelve other states in support of the constitutionality of the federal law. The arguments in the case mirrored the arguments in Stenberg. Once again, the plaintiffs urged the Court to strike down the partial-birth abortion prohibition because it lacked a broad exception for “health” that would allow the partial-birth procedure at the wide discretion of any abortion doctor. The arguments in defense of the law mirrored the arguments in Stenberg, as well.
In our Gonzales brief, we argued that the legal analysis of the “health” exception in Stenberg disregarded the “undue burden” formulation by the Casey Court. Partial-birth abortion is such a gruesome and barbaric procedure that legislatures, both at the level of the states and at the level of the U.S. Congress, must have wide leeway to regulate or ban the practice even under the constitutional test the Court fabricated in Casey.
As we argued in our brief, partial-birth abortion bans “promote at least four important governmental interests: they draw a bright line distinguishing abortion from infanticide; they help to preserve the integrity of the medical profession; they encourage respect for human life; and they prevent unnecessary cruelty to the aborted fetus.” Indeed, in the initial decision of Roe v. Wade itself, the Court had held that the state has a strong interest in the preservation of life in the third trimester—the period in time when partial-birth abortions were most likely to occur.
This time, in Gonzales, we won: the Court ruled, 5–4, in support of the federal Partial-Birth Abortion Ban Act of 2003. What had changed? Only one thing: the composition of the justices. Specifically, Justice Sandra Day O’Connor had been replaced by Justice Samuel Alito, and suddenly, the five justices who had ruled
