The Nullification Machine


Bradley S. Clanton


Copyright (c) 1998 First Things 85 (August/September 1998): 20-23.

This May, a federal judge in Wisconsin created hysteria in the pro-abortion movement by refusing to grant a temporary injunction prohibiting the enforcement of the stateís partial-birth abortion ban while a lawsuit challenging the ban is pending. Abortion providers across the state, in what pro-life groups characterized as a "public relations ploy" to challenge the law, stopped performing all abortions, claiming that the law was "so vague" that it could be construed as prohibiting "virtually any surgical abortion." Pro-abortion groups criticized the decision for "creating chaos" for women seeking abortions in the state. Rep. Nita Lowey (D-N.Y.) cited Wisconsin as "a preview of what will happen everywhere if the Presidentís veto of the partial-birth ban gets overriden."

This staged hysteria was unnecessary, of course, as the Wisconsin law will almost certainly be declared unconstitutional in any event, the judge having stated in his order that the plaintiffs had demonstrated a "likelihood" of success in their challenge to the law. What the frenzy demonstrates, however, is the extent to which the pro-abortion movement has come to expect (and usually receive) favorable decisions from federal courts which, in the words of Justice Antonin Scalia, act as an "ad hoc nullification machine," striking down even the most sensible and perfectly constitutional state abortion restrictions.

The recent decision by the United States Court of Appeals for the Sixth Circuit, Voinovich v. Womenís Medical Professional Corp., striking down Ohioís partial-birth abortion ban, is a good example of what abortion providers and pro-abortion groups like those in Wisconsin now expect from the federal judiciary. Indeed, the court of appealsí decision is a textbook example of just how far activist federal judges are willing to reach in order to strike down state abortion restrictions. The Supreme Court refused to review the decision (with Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas dissenting), giving unmerited legitimacy to the absurd legal arguments in the appeals court opinion.

The Ohio law banned the use of the "dilation and extraction" abortion procedure, also known as "D & X" or "partial-birth abortion." The proscribed procedure was defined as "the termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain."

The bill also restricted late-term abortions. First, all post-viability abortions were prohibited except where a physician determined, "in good faith and in the exercise of reasonable medical judgment," that the abortion was necessary to prevent the death of the mother or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function. A fetus was rebuttably presumed to be viable at twenty-four weeks. Second, before any abortion could be performed after the twenty-second week of pregnancy, a physician was required to test to insure, "in good faith and in the exercise of reasonable medical judgment," that the fetus was not viable. The viability test was not required, however, if a "medical emergency" existed. A medical emergency was defined as a condition requiring an abortion to prevent the death of the mother or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function.

Just over two weeks before the bill was to go into effect, an abortion provider in Ohio filed suit in federal district court seeking a declaration that the statute was "unconstitutionally vague" and placed an "undue burden" on the rights of pregnant women to have abortions. The district court struck down the law, and Ohio appealed the decision to the court of appeals.

The court of appeals began its decision by giving the bill an unreasonably broad construction, guaranteeing that the court would find it "vague" and "unduly burdensome." Despite the fact that the partial-birth abortion ban expressly proscribed only the "dilation and extraction" method of abortion, the court held that the statute could be construed as prohibiting another, more commonly used abortion procedure known as "dilation and evacuation." In order to demonstrate how it reached this counterintuitive conclusion, the court stated that it would be "useful to summarize how and when the three procedures implicated by the Act are performed." These summaries are disturbing enough to shock even the most ardent of abortion supporters.

During the first trimester, the court wrote, the most commonly used abortion procedure is the "suction curettage" or "suction aspiration" method. During this procedure, which is sometimes used up to the fifteenth week of a pregnancy, "the physician mechanically dilates the pregnant womanís cervix by means of metal rods, inserts a vacuum apparatus into the uterus, and removes the fetal matter by means of negative suction."

During the second trimester, the most commonly used abortion procedure is the "dilation and evacuation" procedure, or "D & E." This procedure is used, the court explained, when a suction procedure is no longer feasible "because the fetus is too large to remove by use of suction only." During the D & E procedure, the womanís cervix is dilated and a larger suction curette is placed into the uterus. "With the suction curette," the court continued, "the physician can remove some or all of the fetal tissue. However, the torso and the head of the fetus often cannot be removed using the suction curette." As a result, the court stated,

the D & E procedure typically entails dismembering the fetus, beginning with the extremities, by means of suction curettage and forceps. The most difficult part of the D & E procedure is the removal of the fetal head from the womanís uterus, because it is often too large to fit through the partially dilated cervix. Physicians have developed different methods of removing the head. The evidence shows that some physicians compress the head by using suction to remove the intracranial contents.

The court next described the D & X procedure, which was expressly prohibited by the Ohio law. During the first two days of this three-day procedure, the physician dilates the womanís cervix. On the third day, the dilators are removed and the membranes are ruptured. "Then," the court wrote,

with the guidance of ultrasound, the physician inserts forceps into the uterus, grasps a lower extremity of the fetus, and pulls the extremity into the vagina. The physician then uses his fingers to deliver the other lower extremity, followed by the torso, the shoulders, and the upper extremities. The head, which is too big to pass through the dilated cervix, remains in the internal cervical opening. At this point, while lifting the cervix and applying traction to the shoulders with his or her fingers, the physician takes a pair of blunt curved Metzenbaum scissors and forces the scissors into the base of the skull. Once the scissors has entered the skull, the physician spreads them to enlarge the opening. Finally, the physician removes the scissors, inserts a suction catheter into the hole, and removes the skull contents. The head will then compress, enabling the physician to remove the fetus completely from the woman.

From these summaries, the court concluded that House Bill 135 might be construed to prohibit not only the D & X procedure, but also the D & E procedure, "because the D & E procedure can also entail suctioning the skull contents of the fetus." In other words, despite the fact that the text of the bill proscribed only the D & X procedure, the court of appeals concluded that the ban extended to the D & E procedure.

By construing the bill to prohibit D & E abortions, the most commonly used pre-viability abortion procedure during the second trimester, the court of appeals ensured that it could not survive constitutional scrutiny under the Supreme Courtís 1993 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In Casey, the Court held that pre-viability abortion restrictions are unconstitutional if they place an "undue burden" on a woman seeking an abortion, and a restriction constitutes an undue burden if it places a "substantial obstacle in the path of a woman" seeking to abort a nonviable fetus. "Because the definition of the banned procedure includes the D & E procedure," the court of appeals held, "the Actís prohibition on the D & X procedure has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The court of appeals then turned to the billís post-viability restrictions. According to the Supreme Courtís decision in Casey, a stateís interest in protecting fetal life becomes paramount when the fetus is viable. At that point, a state may regulate or even prohibit abortions except "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Because the billís post-viability restrictions clearly met these standards, the court had to look for another reason to strike them down.

The court found a reason in the fact that the billís maternal health and medical necessity exceptions did not contain a "scienter" requirement, a legal term that indicates the defendant acted with guilty intent. The Ohio law required physicians to make good faith and objectively reasonable determinations that a post-viability abortion was necessary to protect the motherís health or that a medical necessity prevented them from testing to see whether the fetus was viable. No guilty intent on the part of the physician was necessary; the failure to make good faith and objectively reasonable determinations could have subjected the physician to civil and criminal liability. Without an intent requirement, the court concluded, the bill was "unconstitutionally vague."

There are two significant problems with this conclusion. First, the Supreme Court has never held that guilty intent is constitutionally required in order for a state to hold an individual civilly or criminally liable for his actions. In fact, there are numerous laws which impose criminal and civil liability without regard to the intent of the defendant. For example, physicians and other health care workers are routinely held civilly liable for medical malpractice even when they acted with good faith. Criminal liability is also imposed without a scienter requirement for offenses such as statutory rape, bigamy, and carrying concealed weapons. Second, the bill was not vague at all. As Justice Thomas stated in dissenting from the Supreme Courtís decision not to review the case, the bill "plainly imposes both a subjective and an objective mental requirement, and thus its commands are clear."

Because the validity of the Ohio law depended on the constitutionality of these exception provisions, the court of appeals declared the entire bill unconstitutional. However, the court of appeals gratuitously offered its opinion regarding the billís lack of an exception to protect the "mental health" of the mother. This, of course, was President Clintonís asserted justification for twice-vetoing federal legislation banning partial birth abortions.

The maternal health and medical necessity exceptions, which protected against physical health risks only, were included in the bill by the Ohio legislature in order to comply with the Supreme Courtís holding in Casey that post-viability abortions may be regulated or prohibited "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The Casey Court upheld a similar provision that applied only to physical health risks, and the Ohio General Assembly went so far as to state in House Bill 135 that "it is the intent of the General Assembly that the phrase be construed according to the interpretation given to that phrase" in Casey. Undeterred by Ohioís apparent compliance with Casey, the plaintiffs argued that the exceptions were unconstitutional because they did not apply when an abortion was needed to protect the "mental health" of the mother.

The court of appeals conceded that the provision upheld in Casey applied only when necessary to protect the motherís physical health. However, the court ignored that fact and struck down the provisions anyway, concluding that the Supreme Court "will hold, despite its decision in Casey, that a woman has the right to obtain a post-viability abortion if carrying a fetus to term would cause severe non-temporary mental and emotional harm." In other words, despite the fact that the Supreme Court upheld a provision in Casey that did not include a mental health exception, and despite the fact that the Supreme Court has never held that a mental health exception is necessary, the court of appeals held that such an exception is mandated by the Constitution. To paraphrase a quip often attributed to Justice Scalia, it must have been the new Constitution they were applying, rather than the old one.

Dissenting from the court of appealsí decision, Circuit Judge Danny Boggs compared the recent judicial regulation of abortion to the trick Lucy perennially plays on Charlie Brown in the comic strip "Peanuts." Lucy pulls the football away just as Charlie Brown attempts to kick it, and Charlie Brown lands flat on his back. Lucy then reassures Charlie Brown that he can in fact kick the ball, and he keeps trying, but she always pulls it away at the last instant. "Here," Judge Boggs wrote, "our courtís judgment is that Ohioís legislators, like poor Charlie Brown, have fallen flat on their backs. I doubt the lawyers and litigants will ever stop this game. Perhaps the Supreme Court will do so."

Well, the Supreme Court has chosen not to stop the game. Instead, as Justice Thomas stated in dissent, the Court has created "unnecessary doubt" regarding the constitutionality of similar provisions enacted in other states, including Wisconsin. As a result, activist judges will continue to strike down perfectly sensible and constitutionally permissible restrictions on late-term abortions for the absurd reasons offered by the court of appeals. Democratic self-government will continue to be thwarted, and viable infants will continue to be killed by barbaric abortion procedures.

That is, unless Congress is able to muster enough votes to override President Clintonís second veto of the federal partial-birth abortion ban. For those in Congress who remain unconvinced of the merits of the ban, the court of appealsí opinion in Voinovich v. Womenís Medical Professional Corp. is highly recommended reading. And if the courts then strike down that legislation as unconstitutional, the Constitution, as rewritten by federal judges, must be changed.


Bradley S. Clanton is an attorney in Washington, D.C.