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Michael Dorf

What the "Partial-Birth" Abortion Case is Really About


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Abortion, whose choice?
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(FindLaw) -- Does the Constitution grant pregnant women the right to so-called "partial-birth" abortion? Many legal experts claim this intensely controversial question is central to the case of Stenberg v. Carhart, which will be resolved by the Supreme Court before it recesses for the summer.

They may be wrong.

Stenberg appears to raise contentious moral issues but it may actually turn on a technical legal question: What standard should the federal courts use in deciding so-called "facial challenges" to state laws?

In a "facial challenge," a plaintiff asks a court to strike down a law in its entirety. For example, consider a law that violates the principle of separation of church and state by mandating that each public school day begin with a sectarian prayer. The primary purpose of that law would be to advance religion. Under Supreme Court precedent, such a law would be unconstitutional "on its face" because every application of the law would be tainted by this improper purpose - and a plaintiff bringing a "facial challenge" to the law would win in court.

In contrast, consider a law with the proper and constitutional purpose of promoting good citizenship, for example, a law requiring students to recite the pledge of allegiance at the beginning of the public school day. Unlike the school prayer law, this law would not be invalid "on its face." However, it would be unconstitutional "as applied" to those students who do not wish to recite the pledge (or whose parents do not wish them to recite it). Forcing those students to recite the pledge would violate their First Amendment rights because the right to speak includes the right not to speak. However, once the objectors are exempted, the non-objecting students can pledge away.

This flag salute case is an example of an "as applied" challenge, the alternative to a facial challenge. Someone who challenges a law only "as applied" to him does not contend that the law is generally invalid; only that he cannot constitutionally be subject to it.

To win an "as applied" challenge to a law, a plaintiff simply must show that the law is unconstitutional as applied to her. Winning a "facial challenge" is more complicated.

In a 1987 case, United States v. Salerno, the Supreme Court said a plaintiff can win a facial challenge only by showing that the law cannot operate constitutionally under any set of circumstances. This means that under Salerno, if a law has even a single constitutional application, it will survive a facial challenge.


Whether Salerno's rule should be applied in abortion cases has been the subject of hot debate among the Supreme Court justices. Historically, the court has departed from Salerno in such cases. It has struck down abortion laws as unconstitutional in their entirety even if they have a limited number of constitutional applications.

Given the realities of abortion litigation, that makes eminent good sense. Over the nearly three decades since the Supreme Court first ruled that abortion is a constitutional right, anti-abortion state legislators have become increasingly skilled at enacting laws that do not prohibit abortion outright, but tie up in red tape doctors willing to perform abortions, and impose financial and other hardships on women seeking abortions.

The Supreme Court held in 1992, in Planned Parenthood v. Casey, that placing an "undue burden" on abortion rights is unconstitutional. Imposing an "undue burden" - by multiplying red tape - is exactly what these laws aim to do and they should be struck down. But under Salerno, they would survive because a few constitutional applications (say, to post-viability abortions) would save them.

Despite these arguments, Justice Antonin Scalia (usually joined by Chief Justice William Rehnquist and Justice Clarence Thomas) has argued that the court should start applying the Salerno rule to abortion cases. Whether this view prevails may be central to Stenberg - which addresses a facial challenge in an abortion case.

The Nebraska statute at issue prohibits "partial-birth abortion." The Eighth Circuit Court of Appeals struck down the statute because that term was defined to include the most common and safest form of second-trimester abortion - a dilation and evacuation or "D&E" - despite the constitutional right, established in Roe v. Wade and reaffirmed in Casey, to a pre-viability abortion. The Nebraska statute also omits a constitutionally-necessary "health of the woman" exception.

As applied to a woman facing a serious health risk from a continued pregnancy, the Nebraska statute is clearly unconstitutional. It is also unconstitutional as applied to a woman who, in consultation with her doctor, elects to have a D&E early in her second trimester.

But what about as applied to a woman who seeks a post-viability abortion not on health grounds, but because she has decided, late in her pregnancy, to terminate it? As applied to her, under current Supreme Court precedent, the statute would be constitutional - because a prohibition of abortion after viability is, under both Roe v. Wade and Planned Parenthood v. Casey's modified "undue burden" standard, still constitutionally permissible.

Under Salerno, a single constitutional application could save the Nebraska statute. So if the conservative justices prevail, and Salerno applies even in the abortion context, the case would likely be a victory for the state, which could simply point out that the statute is constitutional as applied to most post-viability abortions. As a result, the Nebraska statute would survive. In contrast, if the court follows the historical practice and does not apply Salerno, then the statute's many unconstitutional applications (such as to a second-trimester D&E) will almost certainly ensure its invalidation.

When Stenberg is announced, no doubt the news headlines will be dramatic and sweeping. Yet the actual decision will turn not only on fundamental value judgments but also on the technical niceties of facial versus as-applied litigation.


Michael C. Dorf is vice dean and professor of law at Columbia University, where he teaches civil procedure and constitutional law. He is the co-author, with Laurence H. Tribe, of the book "On Reading the Constitution."


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