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A Huge Change

By Maggie Datiles
Staff Counsel
Abortion Law Before Gonzales

Abortion Law Under Gonzales

The former majority of the USSC established an almost absolute “right” to abortion from conception until birth, leaving the states only minimal room to enact abortion regulations. USSC abortion decisions raised obstacles to passing meaningful abortion regulations, making it extremely difficult for abortion regulations to withstand constitutional scrutiny.

The new USSC majority knocked down some of the obstacles set up by the former majority, allowing the states to enact more meaningful abortion regulations that make medical sense and that would withstand constitutional scrutiny.

The USSC continually expanded the scope of Roe v. Wade, allowing the right to abortion to extend to abortions performed during birth.

Gonzales set up a legal fence against abortions during the process of birth. Gonzales drew a legal line between abortion and infanticide.

In upholding the Federal Partial-Birth Abortion Ban, Gonzales “defines the line between potentially criminal conduct on the one hand and lawful abortion on the other.”2 The decision drew “a bright line that clearly distinguishes abortion and infanticide.”3

Abortion regulations were severely limited in order to satisfy the harsh standard set forth in Stenberg v. Carhart.

The Stenberg v. Carhart standard was replaced with Planned Parenthood v. Casey’s more reasonable and flexible “substantial obstacle” standard.

The Gonzales court applied Casey’s “substantial obstacle” standard, stating: “Under the principles accepted as controlling here, the [Partial-Birth Abortion Ban] Act, as we have interpreted it, would be unconstitutional if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”4

All abortion regulations were required to contain a maternal “health” exception.

Stenberg requires a health exception unless “there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women.”5 Such a standard sets up an absolute “zero tolerance policy” which is “too exacting a standard to impose on the legislative power,” and leaves “no margin of error for legislatures to act in the face of medical uncertainty.” Under such an unreasonable and impossible standard, an abortion regulation would be automatically struck if merely “some part of the medical community were disinclined to [agree with the regulation].”6

Abortion regulations are only required to contain a maternal “health” exception if maternal health is actually implicated. When maternal health is not implicated, only an exception to save the life of the mother is required. In the absence of a medical consensus on whether or not maternal health is implicated, deference will be given to the legislature.

An abortion regulation “is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives.”7

“Medical uncertainty does not foreclose the exercise of the legislative power in the abortion context any more than it does in other contexts.”8

The maternal “health” exception allows abortion for virtually any reason whatsoever, because there is no real limitation on what is considered to be a legitimate “health” reason. “Health” is defined as “all factors – physical, emotional, psychological, familial, and the woman’s age- relevant to the well-being of the patient.”9

This vaguely-defined, all-encompassing health exception swallows the law, and is used by abortion advocates as a “trump card” to strike down, prohibit, or limit any meaningful abortion regulations.

The maternal “health” exception is narrowed, thereby preventing excessive abuse of the exception by abortion advocates, and limiting their use of the exception as a “trump card.”

The legislature is denied proper deference in the abortion context. When the constitutionality of an abortion regulation is challenged in court, the burden is on the state to justify the regulation and prove that it is constitutional under the strict Stenberg standard.

Proper legislative deference is given in the abortion context. When the constitutionality of an abortion regulation is challenged in court, the burden is on the plaintiff/challenger to prove that the regulation is unconstitutional under Casey’s “substantial obstacle” standard.

The “elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” This “longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion.”10

Virtually no recognition is given to the state’s legitimate interest in potential human life, in violation of the standard set forth in Roe and Casey.

Proper recognition is given to the state’s legitimate interest in potential human life, as is required by Roe and Casey.

Gonzales referred to the following language from Casey: “Roe’s essential holding . . . has three parts. First is the recognition of the right of the woman to have an abortion before viability . . . Second is a confirmation of the State’s power to restrict abortions after fetal viability . . . And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus . . . These principles do not contradict each other; and we adhere to each.”11

The Gonzales opinion continued, asserting: “The three premises of Casey must coexist.” The State’s interest in potential human life “from the inception of the pregnancy . . . cannot be set at naught.”12


The Court in Gonzales noted that Casey “confirms that State’s interest in promoting respect for human life at all its stages in the pregnancy.”13

Facial challenges to strike an abortion regulation as a whole are encouraged and heard by the courts.

Facial challenges are discouraged from being heard by the courts, and as-applied challenges to abortion regulations are encouraged.

“[F]acial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.”14

“[A]s-applied challenges are the basic building blocks of constitutional adjudication.”15

The Partial-Birth Abortion Bans of over 30 states were struck as unconstitutional as a result of the USSC’s ruling in Stenberg. The states were left with no guidance on how to pass a Partial-Birth Abortion Ban that would withstand constitutional scrutiny.

Gonzales upholds the Federal Partial-Birth Abortion Ban, thereby opening the door to the enactment of similarly-drafted state Partial-Birth Abortion Bans that will be upheld as constitutional by the courts.

Roe and Casey are constantly cited as binding precedent.

Roe and Casey are not cited in Gonzales as binding precedent.

Informed consent regulations and other regulations designed to discourage abortion and encourage women to carry their pregnancies to term are constantly challenged and subjected to severe limitations.

Gonzales specifically recognizes the need for informed consent regulations and the severe adverse emotional effects of abortion, and acknowledges the state’s authority to enact regulations that are may have the effect of encouraging women to carry their pregnancies to term.

The abortion decision is “a decision so fraught with emotional consequence” that “[s]evere depression and loss of esteem can follow.” In light of this, the state “has an interest in ensuring so grave a choice is well informed . . .  It is a reasonable inference that a necessary effect of [an informed consent regulation] and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of later-term abortions.”16

The public has a poor understanding of both the dangerously expanding scope of Roe’s “right” to abortion, and of the gruesome nature of the partial-birth abortion procedure.

Gonzales generated national attention, and educated the public on both the expansive scope of Roe’s “right” to abortion, and to the gruesome nature of the partial-birth abortion procedure.

Gonzales described the partial-birth abortion procedure as “a brutal and inhumane” procedure “in which a fetus is killed just inches before the completion of the birth process.”17

Partial-Birth Abortion Bans were considered to be unconstitutional violations on a woman’s right to abortion.

The Federal Partial-Birth Abortion Ban is not an unconstitutional violation of a woman’s right to abortion. It did not affect a woman’s right to abortion in any way. Rather, it merely specified the legal methods of abortion.

The state “may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”18

“The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.”19

Authoritative medical evidence of the physical, psychological, and emotional risks of abortion are ignored.

Authoritative medical evidence of the physical, psychological, and emotional risks of abortion are respected and considered.

Testimony by anti-abortion physicians is disregarded and not given adequate consideration, even if authoritative medical data is presented.

Testimony by anti-abortion physicians is respected and given adequate consideration when based on authoritative medical data.  


1. Gonzales v. Carhart, 127 S.Ct. 1610 (2007).

2. Id. at 17.

3. Id. at 23.

4. Id. at 22 (internal quotations omitted).

5. Id. at 14 (internal quotations omitted)

6. Id. at 28-29.

7. Id. at 29.

8. Id. at 27.

9. Doe v. Bolton, 410U.S. 179, 192 (1973).

10. Gonzales, at 20.

11. Id. at 15 (internal citations omitted).

12. Id. at 23.

13. Id. at 26.

14. Id. at 29.

15. Id.

16. Id. at 24.

17. Id. at 22.

18. Id. at 23.

19. Id. at 26.