US Supreme Court: 05-1382

8/14/2019 US Supreme Court: 05-1382

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

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ALBERTO R. GONZALES,

ATTORNEY GENERAL,

Petitioner

:

:

:

v. : No. 05-1382

PLANNED PARENTHOOD :

FEDERATION OF AMERICA,

INC., ET AL.

:

:

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Washington, D.C.

Wednesday, November 8, 2006

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:08 a.m.

APPEARANCES:

GEN. PAUL D. CLEMENT, ESQ., Solicitor General,

Department of Justice, Washington, D.C.; on behalf

of the Petitioner.

EVE C. GARTNER, ESQ., New York, N.Y.; on behalf of the

Respondent.

1Alderson Reporting Company



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C O N T E N T S

ORAL ARGUMENT OF PAGE

GEN. PAUL D. CLEMENT, ESQ.

On behalf of the Petitioner 3

ORAL ARGUMENT OF

EVE C. GARTNER, ESQ.

On behalf of the Respondent 27

REBUTTAL ARGUMENT OF

GEN. PAUL D. CLEMENT, ESQ.

On behalf of the Petitioner 51




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P R O C E E D I N G S

(11:08 a.m.)

CHIEF JUSTICE ROBERTS: Now we'll hear

argument in 05-1382, Gonzales versus Planned Parenthood

Federation of America.

General Clement.

ORAL ARGUMENT OF PAUL D. CLEMENT

ON BEHALF OF PETITIONER

GENERAL CLEMENT: Mr. Chief Justice and may

it please the Court:

This case presents the same basic

constitutional question concerning the Federal

Partial-Birth Abortion Act as the first case. Of

course, the Ninth Circuit in the decision under review

here went much further in invalidating the Federal act.

If I could begin by talking about whether what we're

talking about here is medical necessity or just some

marginal effect on the risks. I think in order to

fairly understand the argument that respondents are

making in this case, their argument has to be a matter

of simply marginal risks, because one illustration of

this, as I indicated in the first argument, if a doctor

really believes that a D&X procedure is the way to go in

a case then there's no ban on the procedure as such.

What the act bans is the infliction of the D&X procedure




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on a living fetus.

So if a doctor really thinks the D&X

procedure is the way to go, he can induce fetal demise

at the outset of the procedure.

JUSTICE BREYER: But the problem with this

is that there -- well, some doctors absolutely agree. I

mean, you know, my list over here, in which I have

hundreds of references from this thing, is doctor after

doctor who takes the other position, and they say:

Look, all that we're doing here is trying to remove the

fetus in a single pass. The fetus is going to die

anyway. It's not viable. We're trying to remove it in

a single pass, and the reason we're trying to do that is

if we don't, there may be bone fragments left inside the

womb. There may be fetal parts left inside the womb.

Every time you make another pass, it turns out there's

an added risk of scarring or hurting the inside of the

womb. If you try to induce demise through a drug

before, there is serious risks of introducing drugs into

the system. If the woman has uterine cancer, it's a

serious problem of not trying to get the child out as

quickly as possible. If you have preeclampsia or

eclampsia, where you're in a situation where the woman

will be dead in five minutes or 10 minutes, there could

be such a situation. The doctor thinks only one thing:




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Get it out as fast as possible. All right.

Now, I know there are doctors who think the

contrary. There's lots of testimony of the doctors who

think roughly along the lines I've taken. That was true

in Stenberg as well. So I think the issue is not that

you don't have support -- you do -- but that the support

is contraverted, and therefore, what do we do in that

case?

GENERAL CLEMENT: Well, Justice Breyer, let

me take as a point of departure the specific risks that

you associated with the injection that induces fetal

demise, because if there isn't a significant risk to

that injection, then all the other benefits that are

associated with the D&X procedure don't matter because

they can perform the D&X procedure. Now if you look

through the record on this point, I think you will not

find any testimony that supports a significant risk from

that injection. Yes, there are risks because there are

risks from any medical procedure, but the risks are not

significant.

JUSTICE BREYER: Is there a definition in

the law of significant risk, other than doctors saying,

I've been trained to try to save life and I want to

perform the safest possible way? Is there some legal

definition of what's a small risk, a big risk, a giant




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risk?

GENERAL CLEMENT: With all respect, I think

if a single injection that doesn't take any particular

risk other than the fact that it's an injection, if that

counts as a significant risk, then we might as well

strike the word "significant" from the discussion in

Stenberg. And Then I think what you have is that it's

very clear that their position is one of zero tolerance

for any marginal risk to maternal health.

JUSTICE KENNEDY: Well, my question is the

same as Justice Breyer's. Is there anything in the

literature, including medical literature, that talks

about significant or minor risks? I mean, you fill out

forms when you go to the dentist about risks. Now,

if -- if the chance of death is one out of 100, is that

significant? I mean, I don't know.

GENERAL CLEMENT: Well, it's a very

difficult question to evaluate in the abstract, Justice

Kennedy. And I think it actually, that question,

though, has direct bearing on this case, because

Congress after all found that there was some risks with

the D&X procedure. The most prominent one that I would

point to is the risk of cervical incompetence because

the D&X procedure does -- it does require additional

dilation, which can be associated with risks of losing




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future pregnancies. And that was born out, although not

at a level of statistical significance, in the Chasen

study by a plaintiff practitioner, where 2 of the 17

women who had the D&X procedure and were available for

follow-up care had an early pre-term pregnancy in the

follow-up.

So I think those risks are born out in the

only study that's available. And I think the question

becomes, now, if D&X were some life-saving procedure for

something that there was no other known cure for, you

might think, well, those are the risks you run. But

when there remains available the D&E procedure, which

has been well tested and works every single time as a

way to terminate the pregnancy, then I think risks that,

if you were talking about a life-saving treatment for

some life-threatening condition with no known cure,

those risks might not be significant in that context.

JUSTICE KENNEDY: Well, but there is a risk

if the uterine wall is compromised by cancer or some

forms of preeclampsia and it's very thin, there's a risk

of being punctured.

GENERAL CLEMENT: There is a risk, Justice

Kennedy, but I think that, first of all, that even in

those limited circumstances, that the marginal risk

between the D&X procedure and the D&E procedure are




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really as far as I can tell nonexistent. Even in that

condition, unless there's some reason not to put the

injection in, if the doctor really thought the D&X

procedure was the way to go, he could begin, as

Dr. Carhart does in every single case after the 17th

week and start off with a digoxin injection or potassium

chloride injection, induce fetal demise, and he has

nothing to worry about from this statute.

And I think the very fact that they are

attributing significant risks to a single injection

shows that at bottom their position is a zero tolerance

position. And that's a legitimate position, I suppose,

but it's completely inconsistent with this Court's

precedence, most notably the Casey decision. Because if

all you needed to do is point to some marginal risk,

then this Court should have struck down the 24-hour

waiting period in the Casey decision, because the

plaintiffs there said the 24-hour waiting condition has

imposed significant risks. They were backed in that

point by an amicus brief by ACOG. But this Court didn't

say, well, you know, you're right, there's marginal

risks, we're going to apply a zero tolerance rule.

This Court instead upheld the 24-hour

period, even though it required overruling Akron I's

contrary decision and this Court pointed, of course, to




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Akron I as an exemplar of the pre-Casey decisions that

put too little weight on the legitimate countervailing

interest that the government has in this area.

And so with respect, I think that the

argument they are making is effectively an argument for

returning to Akron I and Thornburgh, where the rule of

law was that there would be no interference between a

doctor and the doctor's patient and the doctor's best

judgment as to how to treat the patient. This Court of

course consciously moved away from that in Casey and

expressly repudiated the language in Akron I and

Thornburgh to that effect.

JUSTICE STEVENS: May I follow up on a

question the Chief Justice asked you during the last

argument? We got into the government's construction of

the statute to narrow it to intentional situations.

Would you explain a little more exactly what situations

you would exclude and what you would include in your

interpretation of the statute?

GENERAL CLEMENT: Well, justice Stevens, let

me answer it this way and maybe if you want me to take

you specifically to the text, I can do that. But I

think the bottom line would be that under our view of

the statute, the most important thing is for those

doctors, like Dr. Cranen or Dr. Vivicar, who try to do




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the D&E procedure every time, and they succeed 99 or 100

percent of the time. Well, in the 1 percent of the

cases where they inadvertently deliver the fetus past

the anatomical landmark, we would say they are not

covered by the statute because they would not satisfy

what is really a compound mens rea requirement in the

statute, which requires that the delivery of the fetus

be intentional and deliberate and for the purpose of

committing the overt act of killing fetus. And in those

cases, of course, the intent of the doctor performing

the D&E isn't to deliver the fetus at all; it's to

deliver a fetal arm or a fetal leg as part of the

dismemberment procedure. So they would not be covered

by the mens rea requirement of the statute.

JUSTICE STEVENS: Would you measure the mens

rea at the outset of the procedure when they begin the

dilation a day or two before the actual operation is

performed, or is it at the time of beginning the

operation?

GENERAL CLEMENT: I think you could measure

it from either time point. I think the better view is

actually that it would be measured from the beginning of

the surgical operation, though the evidence of their

intent at the beginning of the dilation would be very,

very relevant. The reason I would say that is I think

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Alderson Reporting Company



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if somebody tries to dilate and then gets an extreme

amount of dilation at the point they start the

procedure, I think the intent of Congress would still be

for them to do a dismemberment procedure at that point,

rather than an intact removal.

But if this Court thought that the

constitutional line mattered on the answer to that, then

you could start from the beginning of the dilation

because I think in fairness the differences between the

two procedures are probably most manifest in the

dilation regimen. I also think, though, the record

supports the notion that there are differences even once

you begin the procedure as to how you manipulate the

fetus. I mean, Dr. Chasen for example, who is trying to

do the intact removal, says that after he has one leg

removed he effectively tries to reach back up and swing

the second leg across so he can remove the entire fetal

body. If you're -- obviously if you're performing a

dismemberment D&E you're not trying to swing the second

leg across; you're simply continuing to pull or twist on

the first extremity that prevents itself.

So I think there are differences even at the

procedural level. So I think that it would probably be

most consistent with Congress's intent to measure it

from the beginning of the surgical part of the

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procedure. But if you, as I say, in order to save the

statute, I think it's amenable to the contrary

interpretatio.

JUSTICE BREYER: I think you're wrong about

-- you're probably wrong about this. But just before

you leave, I mean, this is why it's so hard for me to

get into the medical procedure. I heard you as saying,

perhaps wrongly, that well, the doctor can always use a

lethal injection to kill the fetus. All right? That

rang a bell. So I look up and see what the lower courts

said about that and what they said is that nearly

everyone agrees it is not always possible to kill the

fetus by injection.

GENERAL CLEMENT: Oh, but can I respond to

that specifically?

JUSTICE BREYER: He says It is not always

possible -- what?

GENERAL CLEMENT: Can I respond to that

specifically?

JUSTICE BREYER: Well, he then goes; he

tells you why. He says there is a Dr. Knorr who says

you can't do it when the woman has a prior surgery,

pelvic inflammatory disease. And then another one says

they are not considered appropriate candidates because

of medical illness or cardiovascular disease, etcetera.

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So there's a list of medical situations where they

couldn't use a fetal injection.

GENERAL CLEMENT: Justice Breyer, if I could

respond to that.

JUSTICE BREYER: Yes.

GENERAL CLEMENT: I mean, there are certain

situations where the injection is contraindicated. I

think they'd be relatively rare situations. And I

think, you know, you could imagine I suppose that the

statute might pose a problem if you could identify

particular conditions where a D&X was particularly

useful, and those were also situations where an

injection would be contraindicated. I think, you know,

the universe of that may be zero, it may be one in a

million; I don't know, but it's very small.

Another point that's made in the record

which I think is important is they suggest well, you

know, maybe, maybe if you can't do the injection into

the heart of the fetus, then you're only going to be

successful something like 92 percent of the times. I

think though for purposes of the mens rea requirement

would certainly take care of any concern that the

physician would have --

JUSTICE BREYER: It's bothering me, why I'm

using this as an illustration is that there are so many

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of these things. Of course there are special cases. We

are only talking about a few, rare special cases. And

as soon as you tell me that what's supposed to happen is

that the judges are supposed to start deciding whether

this is one of these unusual cases or not, rather than

relying upon significant medical opinion, as this doctor

is now illustrating, I don't see how it's going to work.

At least I don't see how it's going to work without some

people suffering serious illness as a result of mistakes

by the judge.

GENERAL CLEMENT: Justice Breyer, I wish we

were talking about just a few rare cases because I think

if we were, there would be, the statute would be

amenable to not being applied in those rare cases. But

this is one thing that I think my colleagues on the

other side of the podium will agree with me on, is that

their doctors don't think that this is a safer procedure

in rare cases. They think it's a safer procedure every

single time. And that's why doctors like Dr. Chasen and

Dr. Frederickson try to do the D&X procedure every

single time, and they don't do it because they are

indifferent to health, I suppose. In their best

judgment they think that's the better way to go.

And it's just a question ultimately of

whether you're going to defer to individual doctors'

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judgments, even when it's very much of a minority

judgment; I mean anything you want to say about this

procedure it is the heterodox procedure, not the

orthodoxy. Most ob-gyns are going to do the D&E

procedure, not the D&X procedure. Even in the Nebraska

case three of the four plaintiffs don't try to do the

intact removal, so I think that just gives you, just a,

know you, anecdotal observation that you are talking

about the rare procedure, the heterodox procedure.

And so the question is when you have a

perfectly safe alternative, and you have some doctors

who like to do is it a different way, can Congress

countermand the doctors' judgment or do the doctors get

the final word?

JUSTICE KENNEDY: Suppose the doctor has the

intent, the good faith intent to perform a standard in

utero D&E, and he knows because of what's happened in

the last three months, with women with this particular

shaped fetus and particular position of the fetus, that

the chances are 50 percent, 60 percent that it's going

to be an intact delivery, at which point he is presented

with the problem.

Does he have the prohibitive intent?

Because aren't you, don't you have an intent to commit

the, most likely consequences of your acts?

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GENERAL CLEMENT: I don't think so. I mean

that might be a situation -- I don't know that that's a

realistic hypothetical, I mean, let me just say that.

If that turned out to be a realistic hypothetical, that

might be an example of where this question I talked

about with Justice Stevens might matter. Which is in

that case it might matter whether or not the intent was

measured --

JUSTICE KENNEDY: Well, that's important to

me because you seem to think that there is a standard

D&E. In reading the medical testimony it seemed to me

that D&Es ought to result in result in intact deliveries

quite without the intent of the doctor. Now maybe

that's wrong.

GENERAL CLEMENT: With respect, Justice

Kennedy, I don't think that's born out in this record,

it's the other way, which is doctors who want to perform

a D&X, often, in a majority of the cases end up

performing a D&E. But the doctors that set out to

perform a D&E, in Dr. Vibhakar's case she says a hundred

percent of the time, she ends up with dismemberment.

Dr. Creinen says it's 99% of the time that he ends up

with dismemberment.

CHIEF JUSTICE ROBERTS: And I gather your

submission is that we can tell who is setting out to

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perform which, by the dilation protocol. Those were the

record references that you gave earlier?

GENERAL CLEMENT: Yes. And you can, you

can, you can tell you can tell from the fact that a

doctor, like one of the plaintiffs in the Nebraska case,

Dr. Fitzhugh, says, that, well, I don't do the intact

removal because if I wanted to do that I would have to

do a second round of dilation with a second round of

laminarias. And of course, that second round of

laminaria is also a medical procedure. Like the

injection, every medical procedure has some risks, risks

of infection. If you looked at Dr. Creinen's testimony,

this is at 174 A to 177 A in the Eighth Circuit petition

appendix, he says that he doesn't like to do a second

round of laminaria dilation because it's painful to the

patient. And that's his testimony.

So there are countervailing indications

here. And as I say, this idea of trying to prohibit a

practice that involves further dilation is not an

irrelevant concern from a health standpoint, because one

of the things that Congress heard was that there were

risks to future pregnancies from cervical incompetence.

And that's a particularly important concern because

first of all, the plaintiff's experts aren't in a very

good position to evaluate that risk because they provide

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abortion services, not follow-up services. So they're

not in a good position to judge that risk.

Second of all, the only study we have here

points out that there is a greater incidence of that

preterm delivery in the group that had a D&X procedure.

Now again they say, they are going to come up and say

well it's not statistically significant. But the

numbers I think are striking. They had 17 women in the

group that had a D&X and came back. Two of them had a

preterm pregnancy. The D&E group was much larger, 45,

and two of them had a preterm delivery. Now I think as

a commonsense manner, if you know that you were going to

be in a room with 17 people where two people were going

to have something bad happen to them, or in a room with

45 and two -- bad things were going to happen to two, I

know which room I'd like to be in. And all I'm pointing

out --

JUSTICE BREYER: Yes, once you're making a

point of that study, I think it was also the case that

the ones that had the intact were older or rather

further along in pregnancy; isn't that true?

GENERAL CLEMENT: That's right.

JUSTICE BREYER: Therefore the risks were

greater.

GENERAL CLEMENT: Well if I could just --

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JUSTICE BREYER: And therefore since the

risks were greater, the other side says that this

actually shows it was safer. I mean, I don't know how

to evaluate that.

GENERAL CLEMENT: I think it's even more

complicated than that, Justice Breyer, because in fact,

you're right that the D&X patients were at a further

gestational age, but the D&E patients were actually

older. And so I think --

JUSTICE BREYER: I missed that.

GENERAL CLEMENT: Right. But it happens

that, the D&E patients were on average two years older,

which I think also would be associated with greater

risk. So I think it's a wash. But I still think the

Chasen study net is quite helpful to our side. For one

thing, this is a study put together by one of the

plaintiff practitioners, a plaintiff in the Southern

District case, based on a study of his own practice.

And of course one of the intuitions about the D&X

procedure is because you remove it intact it's going to

be a faster procedure and there is going to be less

blood loss.

JUSTICE GINSBURG: General Clement --

GENERAL CLEMENT: Well, what did he find

when he studied that? It was exactly the same for those

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two procedures. I'm sorry.

JUSTICE GINSBERG: Because your time is

running out I did want to ask you about a feature of

this legislation that hasn't come up so far, and that is

perhaps stimulated by Stenberg. But up until now, all

regulation on access to abortion has been state

regulation and this measure is saying to the states,

like it or not, the Federal Government is going to ban a

particular practice and we are going to take away the

choice from the states, in an area where up until now

it's, it's been open to the states to make those

decisions. How should that weigh in this case? And it

is something new.

GENERAL CLEMENT: Well, I mean I don't think

it should figure in this Court's decision. I mean

principally because the other side in neither case makes

a challenge based on the Commerce Clause, and I suppose

there is two reasons for that. That legal reason that

they don't bring the challenge is because there is a

jurisdictional element that I think would address the

challenges as a doctrinal matter. The practical reason

I think is because this isn't the only instance in which

the Federal Government has gotten involved to address

issues related to the abortion context.

JUSTICE GINSBERG: Well I know, when it is a

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question of funding --

GENERAL CLEMENT: Well but also access to

clinics, in the the face act, which is also --

JUSTICE SCALIA: The bes example where

government has gotten involved in overriding what the

states want to do is Casey. It seems rather odd for

this Court to be concerned about stepping on the toes of

the states.

GENERAL CLEMENT: Well -- it's certainly

true that abortion has been dealt with at a Federal

level one way or another since 1973. So I think that's

also part of the backdrop, but I also think, I mean, you

know, the Federal Government gets involved in this

issue, you know, depending on your perspective, for good

or for harm. It's there to protect access to the

abortion clinics --

JUSTICE STEVENS: General Clement, That

brings up a question I was intending to ask you. I

notice the finding says nothing about interstate

commerce but the statute says any physician who in or

affecting interstate commerce performs the procedures.

Does that mean that the procedure is performed in a free

clinic, as opposed to a profit organization, it would

not be covered?

GENERAL CLEMENT: Justice Stevens, I don't

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think we have taken, the Federal Government hasn't taken

a definitive position on that. I think it could be

interpreted either way. I think my understanding is the

face context, a free clinic would be covered. There's

not a jurisdictional element in the face statute. So

there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce

Clause justify application to a free clinic? I don't

understand.

GENERAL CLEMENT: Well, I think by, I mean,

you know, the Court's precedents in other areas has

suggested it's just not a matter of whether the ultimate

service is provided in commerce but in order to get the

services they have to take --

JUSTICE STEVENS: Activities that --

GENERAL CLEMENT: Yes. Exactly. I don't, I

mean, that hasn't been briefed up in this case. If it

had been we'd probably have a definitive position one

way or another. But I don't think the constitutionality

in this facial challenge where that hasn't been a

feature of the challenge turns on the answer to that

question one way or another.

I think in regards to the Chasen study the

last thing I would say about it though is that it's

important because most of the arguments on the other

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side are intuitive arguments. They are intuitive

arguments, that they would be less passive, so that will

be more safe. And what I think is telling is that the

same intuition would lead to the notion that it would be

quicker and there will be less blood loss. And when

that was actually tested in a controlled study, it

turned out not to be the case.

The last thing I'll say about the Chasen

study is there was this indication that the two most

serious complications were associated with the D&E

procedure. But one thing that I think is important to

understand about the Chasen study is it is a

retrospective study of Dr. Chasen and his partner's own

practice. Now what they do in every case is they set

out to perform a D&X procedure, and so what they are

studying and what they call the D&X procedures, that

cohort are the times when they tried to do a D&X

procedure and they were successful.

The D&X cohort from this study, is you know,

are those circumstances where he and his partner tried

to do a D&X procedure, weren't successful and did a D&E

procedure.

Now why is that significant? Because it

shows as Chasen noted in his article that in those

situations that were D&Es and they were associated with

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serious complications there was nothing he could have

done about it. He could have performed a D&X, he tried

to perform a D&X and it wasn't successful, so he ended

up performing a D&E. And so I really think on balance

the Chasen study ends up supporting our position,

because the first time you have any kind of controlled

study what you find is that some of the intuition turns

out not to be true, and the safety benefits from these

are a wash, and the one sort of loose end from the study

is the threat that you do see from the greater dilation.

Now it's not statistically robust, but I think that it

does bear out one of Congress's concerns.

JUSTICE BREYER: Could you address the

question I asked respondent's counsel in the last case

about the availability of other facilities? Because

there are alternate methods but some of these require

hospitalization, and my understanding is the hospitals

aren't always open.

GENERAL CLEMENT: Right, I -- I --

JUSTICE BREYER: So it doesn't make much

sense to say well, there is an alternate procedure if

you can't be admitted to the facility.

GENERAL CLEMENT: Sure. And as I tried to

indicate in rebuttal, that's really not a concern

because, the difference is whether some clinics will

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GENERAL CLEMENT: Well, only with the

caveat, though, is that I think this Court really didn't

have to confront the second concern because it had the

first concern. And if you thought that a leg, which

this Court did, was a substantial portion, and that was

the, that was the act that induced fetal demise, either

way it was covered no matter what your purpose was,

because the doctor's purpose in removing the leg was to

induce fetal demise.

Here the compound mens rea requirement works

with the anatomical landmark language, so that what you

need to satisfy the statute is the deliberate and

purposeful intent to remove the fetus past the navel

with the purpose of performing an overt act that will,

will lead to fetal demise, which is not covered when you

don't even have the intent to take it out of the -- past

the anatomical landmark in the first place and you're

trying to do something that's going to take place in

utero.

If I could reserve the balance of my time

for rebuttal.

CHIEF JUSTICE ROBERTS: Thank you, General

Clement.

Miss Gartner.

ORAL ARGUMENT OF EVE C. GARTNER

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ON BEHALF OF RESPONDENTS

MS. GARTNER: Mr. Chief Justice and may it

please the Court:

In Casey, this Court reaffirmed that the

government cannot ban pre-viability abortions. Despite

Casey, Stenberg suggested that there is a narrow

category of pre-viability abortions, intact D&Es, as

this Court understood that term in Stenberg, that can be

banned so long as the ban contains a health exception.

But I'd like to leave the health exception question

aside for a minute and turn to the scope of the law that

Congress has enacted here.

The question is whether Congress can enact a

pre-viability abortion ban that does not track the

hallmark of intact D&E abortions as this Court

understood that term in Stenberg and by doing so to ban

a substantially greater array of abortions than would be

banned had the law faithfully tracked the language in

the Stenberg opinions about what constitutes an intact

D&E. And I'm referring both to the majority opinion in

Stenberg and in the dissents.

It is our position that this Court must

reject Congress's effort to exploit the limited license

that this Court seemingly granted in Stenberg because to

allow such an expansion of pre- viability abortions that

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can be banned would set the stage for continued

legislative efforts to ban other iterations of the

classic D&E method of abortion until truly there would

be nothing left at all of Casey's holding that it is

unconstitutional to ban pre- viability second trimester

abortions.

The government in this case has conceded

that the act bans more abortions than merely the intact

D&E as this Court understood it in Stenberg. But I want

to highlight for the Court how the language of this act

departs from the hallmarks of intact D&E and how these

departures place doctors at risk of prosecution for the

very facet of D&E abortions, and by that I mean all D&E

abortions, that enhance their safety.

There is three respects in which the act

departs from the hallmarks of intact D&E as understood

in Stenberg. First, the act does not require breach

extraction of an intact fetus to the head, one of the

primary hallmarks that this Court understood in

Stenberg. Instead, the act applies once the fetus is

extracted past the navel, a far more frequent occurrence

than extraction to the head. And in fact the government

in its briefing both in their initial brief and in their

reply concedes that in any of what the government calls

standard D&Es a living fetus can be extracted past the

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fetal navel before demise occurs.

In addition, the act does not require the

fetus to be delivered intact at the end of the

procedure, another component of what is considered to be

a hallmark of intact D&E in Stenberg.

In fact, the word intact appears nowhere in

the statute and again the government concedes that some

non-intact D&Es would violate this law as drafted. In

fact, the government contends that one of the

"advantages," in its words, is that the law would ban

more than intact D&E. And finally, the act does not

require that the fetus be extracted in a breach

presentation at all, even though in Stenberg the Court

thought of the breach extraction as one of the hallmarks

of intact D&E.

Now this --

CHIEF JUSTICE ROBERTS: Do you -- I think

this question was asked earlier, but I want your

position. How often does the vertex delivery occur in a

D&X procedure? I --

MS. GARTNER: Your Honor, two, two doctors

in particular, Dr. Chasen and Dr. Hammond, testified

that they have used in their practice the vertex

presentation to treat women who, as Ms. Smith indicated,

the fetus suffered from a serious lethal anomaly that

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involved a greatly distended abdomen. The fetus

presented in a head-first presentation. The head

delivered through the dilated cervix, but the only way

to complete the procedure was to reduce the size of the,

of the abdomen that was, that was anomalous in size

because of the underlying fetal condition.

In those cases, those doctors testified that

that was absolutely the safest way to terminate the

pregnancy for the woman. The only alternative way would

have been abdominal surgery, which, which all the,

virtually all of the doctors, even the government's

doctors, agreed carries far greater risks for the woman

than a vaginal surgical abortion.

JUSTICE SOUTER: Miss Gartner, with regard

to your argument that the statute here did not track

what you have described as the characteristics, the

hallmarks, I think the answer from the other side is

that the, the theory of this statute is a theory of a

clear line between a legitimate abortion and

infanticide. And if that is the theory, then whether

it's a breach delivery or a non-breach delivery is

irrelevant. What would your answer be to that?

MS. GARTNER: Well, two answers, Your Honor.

First of all, the clear line that this Court drew in

Stenberg was essentially the line at intact delivery to

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the head followed by an act that results in fetal

demise. Very clearly what this Court understood in

Stenberg could -- was, was an intact D&E and several

members of the court suggested that that would be

constitutional to ban.

In addition, the government today seems to

suggest --

JUSTICE SOUTER: Well, we said that that

would be an appropriate line. But the question here is

is it really essential to an appropriate line that we

talk, that we describe it as a, as a breach delivery or

a non-breach delivery.

MS. SMITH: Your Honor, I would agree that

of the three hallmarks that the Court recognized in

Stenberg, the breach delivery is probably the least, the

least central; that the other two hallmarks, the

extraction to the head followed by a completely intact

delivery after demise, were absolutely the hallmarks

that everyone on this Court understood in Stenberg, and

those, those lines, are nowhere in the statute that

Congress enacted.

Today General Clement seems to be arguing

that there is a different line that's protected in this

statute, a different line than the Court recognized in

Stenberg, and the line is about where the fetus is when

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demise occurs. But, but this Court in Stenberg

understood that even in a classical D&E, a standard D&E,

as the government calls it, part of the fetus is outside

the woman's uterus when fetal demise occurs. The Court

recognized that fetal demise occurs even in a standard

D&E when, after a part of the fetus is drawn out of the

women's uterus, resistance is met, disarticulation

occurs, and after that fetal demise. So even in a

standard D&E the line that the government today is

offering up, the line of inside or outside the uterus,

would be violated in any D&E --

CHIEF JUSTICE ROBERTS: I understood the

statute here to apply only when the, in the words of the

statute, that the partially delivered infant is killed

after passing the anatomical landmark.

MS. GARTNER: Well, that's right, Your

Honor.

CHIEF JUSTICE ROBERTS: So we just say your

hypothetical about extraction of the leg it seems to be

would not be covered by the statute.

MS. GARTNER: Absolutely, Your Honor, that's

right. But what I'm saying is that some part of the

fetus, no matter what, is outside the women's uterus,

whether it's an intact D&E, a non-intact D&E --

JUSTICE SCALIA: But we don't talk about a

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leg dying. We talk about the fetus dying, I think, and

I think that's not the leg.

MS. GARTNER: I think the important point is

that the government acknowledges that in a standard D&E,

what it calls standard D&Es, the fetus can be extracted

past the anatomical landmark. So the anatomical

landmark isn't a bright-line decision between intact

D&Es and non-intact D&Es. But in Stenberg this Court

drew that line between intact D&Es and non-intact D&Es.

It suggested --

CHIEF JUSTICE ROBERTS: Where does the

government concede that in a standard D&E the living

fetus is extracted past the anatomical landmark?

MS. GARTNER: It does so --

CHIEF JUSTICE ROBERTS: I thought that was

-- I thought their position was that that was not the

standard D&E.

MS. GARTNER: Right. It does so in two

places, Your Honor. On page 32 of their initial brief

they refer to, they describe two circumstances that they

say or two parts of the law that they say saved the law

from banning non- intact D&Es. The first is the

anatomical landmark and the second is the requirement of

an overt act. They describe the overt act as saving

non-intact D&Es that were not already excluded from the

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do that, then the doctor is not liable?

MS. GARTNER: Well, Your Honor, I think this

gets to the point I was going to make about the safety

of doing abortions in a way that would be banned by the

law, and that's that in every D&E, regardless of whether

the intent is to do an intact D&E or not an intact D&E,

the intent is to minimize the insertion of instruments

into the uterus and to extract the fetus as intact as

possible, because each insertion of the instruments

increases the risk of causing harm to the woman's

uterus. And so in every D&E, regardless of whether the

physician expects to have an intact fetus at the very

end of the procedure, they do want to minimize the --

the amount of instrumentation and bring it out in as few

parts as possible and so there is a deliberate and

intentional delivery of the fetus as far as possible

which often can be past the navel, though in most cases

it won't be up to the head. So that's why the line that

this Court drew in Stenberg is the line that first of

all delineates between two distinct procedures: intact

D&E and nonintact D&E. The difference between those two

procedures is whether the fetus is extracted to the head

or not to the head before demise occurs. This, this

statute doesn't draw that line. It draws a different

line and in doing that, it captures far more abortions

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than the other law would and, and the key thing is that

if this law stands with the past the navel line the

inevitable result is that doctors in order to try to

avoid the reach of this statute will have to stop trying

to minimize the instrumentation and stop trying to draw

the fetus out as intact as possible because often when

that happens --

CHIEF JUSTICE ROBERTS: My concern with your

argument is it's not just the anatomical line. The

statute, I guess the Solicitor General referred to this

as the multiple mens rea requirement. It's not simply

the extraction to a particular anatomical landmark but

with the purpose of demise at that point. So, if in the

typical D&E the demise is going to be accomplished

before extraction passed the anatomical landmark. It

wouldn't be covered by this law.

MS. GARTNER: Well, Your Honor, I guess to

some extent it comes down to what intent means but if

what it means that the doctors would prefer, would like

it to come out as far as possible before they have to

take any, any kind of action to clear an obstructing

part, that's, that's what they intend.

The doctor only uses disarticulation when

it's necessary to clear an obstruction because the

continued extraction --

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CHIEF JUSTICE ROBERTS: What about the

Solicitor General's reference with respect to the

differing protocols on dilation which suggests a

different intent going into the procedure for the D&E

and D&X?

MS. GARTNER: Well, two points, Your Honor.

One is the statute makes no mention of dilation

protocols even though some group like the American

College of Obstetricians and Gynecologists when they

intend to define an intact D&E abortion they've defined

it specifically by reference to dilation protocols. And

some state statutes have also used dilation protocols as

part of the definition of intact D&E but this statute

makes no mention of dilation protocols.

JUSTICE SOUTER: No, but the dilation

protocol certainly would be relevant on the question of

intent which this statute does refer to, wouldn't it?

MS. GARTNER: I think it would be relevant,

Your Honor, but I think it's not -- it really can't be

dispositive of the physician's intent be --

JUSTICE SOUTER: Because?

MS. GARTNER: Some doctors use a one day

protocol, some doctors use a two day protocol but that

in of itself isn't --

JUSTICE SOUTER: But you're telling us that

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some do this and some do that and the question is why

wouldn't following one protocol rather than another

protocol very significant evidence of what was intended?

MS. GARTNER: Because some doctors use a two

day protocol, Your Honor, even if they don't expect to

get an intact D&E. There is not a direct correlation,

there's some correlation between the amount of dilation

and the percentage of times that a physician achieves

intact D&E. To some extent doctors also use other

agents to dilate, they use misoprostol and medication.

That even if they're doing a one day protocol --

JUSTICE SOUTER: Do we have any indication

in your case about the effective safety of any other

aspect of this procedure if these doctors would change

their, their method of operation and go to a one-day

protocol?

MS. SMITH: In terms, one-day protocol?

JUSTICE SOUTER: Yes.

MS. GARTNER: Some doctors -- I think one

thing is that doctors perform abortions most safely when

they do them in a way that they are most accustomed do.

They are doing them the way they were trained to do

them.

JUSTICE SOUTER: I don't want to cut your

answer but I want to know whether there is anything

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specifically in the record in your case that bears on my

question.

MS. GARTNER: There is nothing specific

about doctors changing protocols. There is significant

evidence about increased risks if doctors were to stop

trying to extract the fetus as intact as possible.

Several witnesses, including several government

witnesses have agreed.

JUSTICE SOUTER: Do you mean start and stop

with a different intent?

MS. GARTNER: That's right, Your Honor.

JUSTICE SOUTER: As opposed to adopting a

completely different procedure entirely -- a different

protocol entirely.

MS. GARTNER: Well, no actually even the

other government witness, Dr. Cook, agreed that -- and

the other government witness, Dr. Lockwood, agreed that

removing the fetus as intact as possible in any D&E is

the safest way to perform a D&E procedure regardless of

whether the intent was to do an intact D&E procedure.

JUSTICE BREYER: For such a doctor, a doctor

who thinks that I'm trying to remove in this emergency

situation as much of the fetus as possible as quickly as

possible, would such a doctor often, never, sometimes be

thinking what I think is likely to happen here, I'll

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make a pass at the fetus, try to draw it out, and what's

most likely to happen is that the trunk, a lot of it

will come out and then the head of the fetus will

dismember, after a lot of the trunk comes out.

Is that --

MS. GARTNER: I would say it certainly is

not never and it's not always. It's somewhere in

between but I think --

JUSTICE BREYER: So if a doctor is being

honest about that, is there any way that such a doctor

could escape the language of the statute on the

government's interpretation?

MS. GARTNER: I think not Your Honor because

the intent is to extract the fetus as intact as

possible. In a good many cases it will be extracted

past the navel though not to the head. So the doctor

falls within the deliberately and intentionally language

and I don't think, the government also proffers the idea

of specific intent, but again because this statute

doesn't track the actual differences between the two

procedures, the having the specific intent doesn't save

the statute. The doctor may intend to perform the

abortion as defined in this law but not intend to do an

intact D&E and that was the testimony in these cases.

JUSTICE STEVENS: Would you clear up one

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thing for me? You say it's always the doctor's intent

to extract as much as possible before causing fetal

demise. I thought there was significant number of cases

in which there was a deliberate decision to cause fetal

demise before I start any extraction?

MS. GARTNER: Well, Your Honor there is

testimony in our case, in the California case, that a

few doctors that testified said the beginning at

approximately 22 weeks of pregnancy, they offered women

the option of undergoing a fetal demise injection before

the procedure began. But the testimony was also

overwhelming, including from the government witnesses,

that that injection procedure carries significant risks

for some women. For example, women with either

susceptibility to infection, like women with HIV or

hepatitis, you definitely don't want to do an additional

injection. That in addition --

JUSTICE STEVENS: From the point of view of

the doctor it would be the safest thing to avoid

criminal responsibility.

MS. GARTNER: It -- but the problem is as

the district court, found it's an unnecessary medical

procedure that subjects the woman to additional risk.

Now if the doctors --

CHIEF JUSTICE ROBERTS: Why would the

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doctors in that case propose that option to their

patients?

MS. GARTNER: At 22 weeks and later, as the

abortion is getting closer to the viability line, the

doctors feel that some women would feel more -- it's for

psychological reasons for the woman. That's why it's an

offer; it's not a requirement.

CHIEF JUSTICE ROBERTS: Well, what -- what

are the psychological reasons?

MS. GARTNER: If she would prefer that the

fetus undergo demise before the extraction begins, some

women may feel better about that. The testimony was

also that other women absolutely don't want that. And

you know, feel that they -- you know, it's a very

personal question that really goes to the heart of this

case. It's a very personal decision how the woman who

has made this very difficult moral/religious decision to

end her pregnancy, often for very tragic reasons, how

does she want the fetus to undergo demise? Different

people will have different views about this. But here

Congress has legislated that for the woman and done so

pre-viability, when the state interests really are

insufficient to require the woman to undergo a procedure

that is not marginally safer but significantly safer for

her.

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CHIEF JUSTICE ROBERTS: Well is there a

difference between, in your view, in the

constitutionality, marginally safer and significantly

safer? In other words, I take it we don't, you

obviously were here for the discussion in the prior

case. We don't have evidence on marginal significant.

And do you think it matters; if in fact it's a marginal

difference in safety, does that, is that still enough to

override Congress's interests in this case?

MS. GARTNER: Yes, Your Honor, it does

matter. Marginal safety would not be enough but I think

what is important is that you assess, you assess the

question of marginal versus significant by looking at

the averted harms. It's not a question of quantifying

how many women would avert the harms.

CHIEF JUSTICE ROBERTS: Well, do we just

look at the averted harms, or -- or do we, or Congress,

also look at the incidence of the averted harms? Is it

a theoretical -- is it a theoretical inquiry or is it to

some extent a quantified inquiry?

MS. GARTNER: Well, Your Honor, I think it

can't be a quantified, quantified inquiry. Ultimately

this Court has never looked at the constitutional

question of when an abortion statute interferes with a

woman's health to an extent that it's unconstitutional,

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in terms of how many women are affected. The question

is, is how seriously would a woman be affected if she

affected? And the evidence here is overwhelming.

JUSTICE STEVENS: Doesn't the answer to my

question turn largely on the age of the fetus? Isn't it

a vast difference between the kind of decision the

mother that is to make if it's a 14 week fetus on the

one hand and 26 week fetus on the other?

MS. GARTNER: Well, I'm not sure if that's.

JUSTICE STEVENS: For example, one of the

congressional interests described in the finding is

avoiding fetal pain to the fetus. And I guess they

don't suffer any pain prior to 20 weeks but after 20

weeks there is some risk of pain. And that seems to me,

that could affect a calculus very dramatically for the

woman making the decision.

MS. GARTNER: For the woman, but I think the

important point, Your Honor, is that this, that the

intact D&E procedure, and the testimony was overwhelming

to this effect, that -- in some cases this procedure

averts catastrophic health consequences for the woman.

It averts uterine perforation, it averts the spread of

sepsis or infection; it averts the spread of --

potentially the spread of malignant cancer throughout

the women's body.

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CHIEF JUSTICE ROBERTS: If -- if the woman

can take into account the impact on the fetus at a

certain point in time, and your option, as you said some

physicians give, of fetal demise prior to the procedure,

why is that beyond the scope of things that Congress can

take into account?

MS. GARTNER: Because what Congress has done

here is take away from women the option of what may be

the safest procedure for her. This Court has never

recognized a state interest that was sufficient to trump

the woman's interest in her health. If the woman and

her doctor together agree that proceeding in this way is

going to avert significant health risks to her, and the

testimony here is overwhelming that there are situations

where that occurs, this Court has never recognized a

state interest that was sufficient to trump that woman's

paramount interest in her health.

JUSTICE SOUTER: Well, but we have -- we

have said that that judgment has to reflect some kind of

substantial medical judgment. It can't be an

idiosyncratic determination by one doctor alone.

MS. GARTNER: Absolutely, Justice Souter.

JUSTICE SOUTER: So to that extent --

MS. GARTNER: And that's -- and I take that

-- and maybe that was my -- and I take this as a given

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here. Given the overwhelming testimony from doctors

from the American College of Obstetricians and

Gynecologists, and this Court's holding in Stenberg,

where the record was less robust, that we have that

substantial medical authority here. And given that

substantial medical authority, doctors need to be able

to use their appropriate medical judgment, in the words

of Roe and Casey, to provide this procedure for their

patients when in their judgment -- not in their

unfettered discretion, but in their sound clinical

experience and medical judgment it's going to be the

safest for her and avert catastrophic health

consequences.

So this is -- again, it may be that the

number of women is not large, but for the women who are

affected the impact of this ban is undoubtedly

significant.

JUSTICE KENNEDY: I don't want to

misinterpret the Attorney General, the Solicitor

General's remarks but he indicated in those case there

could be an as applied challenge.

MS. GARTNER: Well, I think, Justice

Kennedy, you answered that question as well as I could.

If a woman had to wait until she needed a banned

abortion for her health, and file a proceeding wait for

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the court to grant relief, undoubtedly she would not get

the relief she needed in time.

JUSTICE KENNEDY: Well, the answer that the

Solicitor gave -- General gave to that was, you could

have a pre-enforcement proceeding. That you can back up

the clock.

MS. GARTNER: Right. I'm not sure that I

actually understood his answers though, because I think

that that's what we have here, in fact, is a

pre-enforcement proceeding to, to determine that this

law blanketly banned intact D&E abortions even when the

doctor believes it's, it would have significant health

benefits for the patient.

So this is not, I want to go back to,

because my light is on, Stenberg suggested that there

was a line that could constitutionally be drawn between

banned, between permissibly banned procedures and, and

procedures that have constitutional protection. But the

statute didn't draw the line and it didn't draw that

line in two ways. This, this statute defiantly rejected

this Court's view that because there is substantial

medical authority for the proposition that intact D&E is

sometimes safer, a health exception is absolutely needed

here, and they also refused to draw the line at what

this Court understood was the defining difference

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between intact D&E and nonintact D&E.

In the Solicitor General's reply brief they

talk about the promise of Stenberg. Well, the promise

of Stenberg was absolutely betrayed by Congress in this

case in both respects, both in terms of preserving the

health of the woman and allowing her to use what a

substantial medical authority thinks is the safest

procedure for the woman, and in terms of holding the

line at a limited ban on pre-viability abortions given

that Casey recognized that women have a constitutional

right to choose to end their pregnancy pre-viability.

I was going to address briefly some of the

concerns that the Solicitor General offered about some

of the health risks of intact D&E and cervical

incompetence. Just briefly. The, all of the government

witnesses in this case agreed that the congressional

findings completely overstate any risks of intact --

there is no, there is no reasonable basis to conclude

that intact D&E puts a woman at any greater risk of harm

than standard D&E, and in fact the evidence is quite to

the contrary. It averts catastrophic health

consequences in some circumstances. There is no strong

evidence that intact D&E has any impact on cervical

incompetence.

The Solicitor General talks at length about

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the two cases in Dr. Jason's study, but both of those

women who experienced cervical incompetence had, in

future pregnancy, had had cervical incompetence in prior

pregnancies, and that's a condition that tends to stay

with the woman. So there is no reason to think that it

was the intact D&E itself that caused cervical

incompetence in the subsequent pregnancies because of

intact D&E.

And finally, yes, it's true that Dr. Chasen

used intact D&E or attempted to use intact D&E in all

cases, and the women who had D&Es, three of them

suffered very serious medical consequences after having

a D&E. The Solicitor General says well, Dr. Chasen tried

to do intact and he failed so, so there was really

nothing to say about this law. But the fact is, if this

law went into effect, no woman could have intact D&E. So

even though, even in those cases where Dr. Chasen was

able to do intact D&E, he would no longer be able to do

that. So the incidence of those women having

catastrophic health consequences, which in the Chasen

study, three of the women having D&Es had catastrophic

health consequences. Inevitably if this law is upheld,

an intact D&E is not available as an option to doctors

when in their judgment based on substantial medical

authority, it's the best option for the woman.

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Inevitably there will be more and more women having D&Es

and suffering catastrophic health consequences in

situations where if intact D&E had been available, those

catastrophic consequences could have been averted.

CHIEF JUSTICE ROBERTS: Thank you,

Ms. Gartner.

MS. GARTNER: Thank you for your

consideration, Your Honor.

CHIEF JUSTICE ROBERTS: General Clement, you

have three minutes remaining.

REBUTTAL ARGUMENT OF PAUL D. CLEMENT

ON BEHALF OF PETITIONER

GENERAL CLEMENT: Mr. Chief Justice, and may

it please the Court:

A few final points. First of all, I don't

think the constitutionality of Congress's act depends on

whether the anatomical landmark is the navel or up to

the head. Congress, as everyone recognizes, had to draw

a line. I think drawing the line at more than halfway

out is a pretty good place to draw the line.

Second, my learned co-counsel is certainly

correct. This is a pre-enforcement challenge, in

response to your question, Justice Kennedy. But the

point is, this is a pre-enforcement spatial challenge,

and if the Court rejects it and allows this statute to

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go into operation, it will not foreclose the possibility

of a future pre-enforcement as applied challenge that

focuses on particular medical conditions. That's not

something, though, that one can reach in this record,

because as the district court in this case found at

147a, there is no specific condition here in which the

D&X procedure is particularly ready met for or otherwise

is medically necessary. Rather, the claims in this case

are that it's always better. That's what some doctors

say. It's a heterodox position, it's not the majority

position, but it's not focussed on specific situations.

The other thing it's not focused on, and

this is in reference to something that Justice Breyer

mentioned, it's not focused on emergencies. Another

thing that the district court noted at page 128a of its

opinion is that the D&E procedure and the D&X procedure,

neither of them are particularly good in dealing with

true medical emergencies where time is of the essence,

because both these procedures require substantial

advance time to do the dilation. And since the D&X

procedure requires more dilation, I actually think in an

emergency, you'd probably end up performing the D&E

procedure if you performed either one, because you'd

need less time for the dilation in an emergency.

The other thing I should point out is that,

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of course, there is this question about what's a

significant risk. And one thing about the lethal

injection at the beginning of the process, the Digoxin

injection, is the other side concedes that the mother

gets to make the choice as to whether or not to do that

procedure. Well, Dr. Carhart does it as a matter of

course after 17 weeks, and I certainly don't think

anyone would suggest that Dr. Carhart is needlessly

inflicting significant risks on his patients after 17

weeks by following that regimen in every case after 17

weeks.

And I think it's worth noting that the legal

regime that respondents would construct is a legal

regime where the woman can decide whether or not to have

that shot, Dr. Carhart can decide it for her and that's

okay, but Congress can't make this judgment. But it's

important to draw a line here, and say that fetal demise

that takes place in utero is one thing. That is

abortion as it has always been understood. But this

procedure, the banned procedure is something different.

This is not about fetal demise in utero. This is

something that is far too close to infanticide for

society to tolerate. Thank you.

CHIEF JUSTICE ROBERTS: Thank you, General

Clement. The case is submitted.

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(Whereupon, at 12:07 p.m., the case in the

above-entitled matter was submitted.)

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Documents

US Supreme Court: 05-1382