The first appellate court decision concerning a federal law called the Partial-Birth Abortion Ban Act of 2003 came down on Friday. In it, the Court of Appeals for the Eighth Circuit struck down the law as unconstitutional.
Here's the story: Five years ago, in a case called Stenberg v. Carhart, the Supreme Court invalidated a Nebraska law banning all so-called “partial birth” abortions. In a situation where a woman has the constitutional right to seek an abortion, the Supreme Court majority reasoned, a state may not regulate the method of her abortion in a way that endangers her health. Specifically, “where a significant body of medical opinion believes [an abortion] procedure may bring with it greater safety for some patients,” the state may not ban that procedure unless the ban incorporates an exception to cover those cases in which, medically, the banned procedure is the best approach. The Court canvassed the views of medical groups. It didn't find a consensus among doctors that, as plaintiffs argued, the banned procedures would be the safest for some patients. It didn't find a consensus the other way either, though: There was no consensus that the banned procedures couldn't sometimes be the safest approach for a pregnant woman. Bottom line: doctors disagreed. That risk that the state might be banning a sometimes-medically-necessary procedure, said the Court, was enough to require the state to write a exception into the law — and it hadn't, so the law was unconstitutional. Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas dissented.
Congress responded by enacting a new, nationwide ban. It explained in the statute that there was a “moral, medical, and ethical consensus” that the covered procedures were not only “gruesome and inhumane,” but indeed “never medically necessary.” The Stenberg v. Carhart decision, Congressional leaders explained, was irrelevant: The Court had announced legal consequences following from its medical uncertainty, but in fact there was no uncertainty. The Court's understanding about the possible medical desirability of the procedure had been superseded by Congress' declaration that the procedure was never medically in the interests of any patient.
The Eighth Circuit, on Friday, disagreed. The Supreme Court's earlier decision, it said, had dispositively established that there was a dispute among doctors over whether the procedure was sometimes medically desirable. Congress couldn't change that simply by announcing a consensus.
There's a bunch going on here that's interesting. The Court in Stenberg v. Carhart had responded to uncertainty by insisting that Indiana could not take the risk of banning a treatment that might (it didn't know) in some cases prove to be the safest choice. Congress responded that it didn't see the matter as at all uncertain, and that its own sureness should govern. For now, though, the most important thing to say about the Eighth Circuit's decision is that it's probably really short-lived. Only four of the Justices who voted with the Stenberg v. Carhart majority are still there. Justice O'Connor, of course, was the fifth.