"Partial-Birth" Abortion and the 2006 Term of the U.S. Supreme Court
and the 2006 Term of the
U.S. Supreme Court
January 4, 2007
Jon O. Shimabukuro
American Law Division
“Partial-Birth” Abortion and the 2006 Term of the U.S.
The Partial-Birth Abortion Ban Act (“PBABA” or “the act”) was signed into
law on November 5, 2003. Within two days of its enactment, the PBABA was
enjoined by federal district courts in Nebraska, California, and New York. Since that
time, the U.S. Courts of Appeals for the Second, Eighth, and Ninth Circuits have
affirmed lower court decisions that have found the act unconstitutional.
This report examines Gonzales v. Carhart and Gonzales v. Planned Parenthood,
the partial-birth abortion decisions from the Eighth and Ninth Circuits. In spring
2006, the U.S. Supreme Court agreed to review the two decisions. This report
provides background information on the PBABA and explores the arguments put
forth by the parties.
Gonzales v. Carhart and Gonzales v. Planned Parenthood.............3
Undue Burden and the Overbreadth Doctrine........................7
Narrower Injunctive Relief......................................9
“Partial-Birth” Abortion and the 2006 Term of
the U.S. Supreme Court
The Partial-Birth Abortion Ban Act (“PBABA” or “the act”) was signed into
law on November 5, 2003.1 Within two days of its enactment, the PBABA was
enjoined by federal district courts in Nebraska, California, and New York.2 Since
that time, the U.S. Courts of Appeals for the Second, Eighth, and Ninth Circuits have
affirmed lower court decisions that have found the act unconstitutional.3
In spring 2006, the U.S. Supreme Court agreed to review Gonzales v. Carhart
and Gonzales v. Planned Parenthood, the partial-birth abortion decisions from the
Eighth and Ninth Circuits. This report reviews the two cases and discusses the
arguments put forth by the parties. The report also provides background information
on the PBABA.
The PBABA was enacted after numerous attempts by Congress to limit the
performance of an abortion procedure commonly referred to as “intact dilation and
evacuation” or “dilation and extraction” (“D&X”) by the medical community.
Legislation to prohibit this procedure, described as “partial-birth abortion” by its
opponents, was first passed by Congress in 1995 during the 104th Congress.4 The
PBABA of 1995 was vetoed by President Clinton because it did not include an
exception that would allow the procedure to be used to protect the health of the
mother. The President stated that “the bill does not allow women to protect
themselves from serious threats to their health.”5 By refusing to allow the D&X
procedure to be performed when a woman’s health was in jeopardy, the President
1 P.L. 108-105, 117 Stat. 1201 (2003).
2 For additional information on the Partial-Birth Abortion Ban Act litigation, see CRS
Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O.
3 See National Abortion Federation v. Gonzales, 437 F.3d 278 (2d Cir. 2006); Carhart v.
Gonzales, 413 F.3d 791 (8th Cir. 2005); Planned Parenthood v. Gonzales, 435 F.3d 1163 (9th
4 H.R. 1833, 104th Cong. (1995).
5 Message to the House of Representatives Returning Without Approval Partial Birth
Abortion Legislation, 32 Weekly Comp. Pres. Doc. 645 (Apr. 10, 1996).
contended that “Congress has fashioned a bill that is consistent neither with the
Constitution nor with sound public policy.”6
During the 105th and 106th Congresses, Congress again passed legislation to
prohibit the D&X procedure.7 In 1997, during the 105th Congress, the President
vetoed a partial-birth abortion measure on the grounds that it did not include a health
exception.8 In 2000, during the 106th Congress, the Senate did not appoint conferees
to resolve differences between the House and Senate-passed versions of the
The partial-birth abortion measure that was enacted in 2003 prohibits a
physician from knowingly performing a “partial-birth abortion” and killing a human
fetus. The term “partial-birth abortion” is defined as an abortion in which the person
performing the abortion “deliberately and intentionally” delivers a living fetus until
a specified part of the fetus is outside the body of the mother for the purpose of
performing an overt act that the person knows will kill the fetus, and performs the
overt act that kills the fetus.9
Under the PBABA, a physician who knowingly performs a partial-birth abortion
and kills a fetus will be subject to a fine, imprisonment for not more than two years,
or both.10 The act does not prohibit partial-birth abortions that are necessary to save
the life of a mother whose life is endangered by a physical disorder, physical illness,
or physical injury, including a life-endangering physical condition caused by or
arising from the pregnancy itself. Thus, the PBABA allows an exception for partial-
birth abortions to preserve the life of the mother. However, a similar exception to
protect the health of the mother is not included in the act.
The PBABA provides a cause of action for certain individuals affected by the
performance of a partial-birth abortion. The father of the fetus, if married to the
mother at the time a partial-birth abortion is performed, and the maternal
grandparents of the fetus, if the mother is under 18 years of age at the time of the
abortion, may obtain appropriate relief, except when the pregnancy is the result of the
plaintiff’s criminal conduct or the plaintiff consented to the abortion.11 For purposes
6 Id. For additional information on abortion generally, see CRS Report 95-724, Abortion
Law Development: A Brief Overview, by Karen J. Lewis and Jon O. Shimabukuro. In Roe
v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court determined that a restriction on
abortion is unconstitutional if it does not recognize an exception for abortions that are
necessary to preserve the life or health of the mother. The Court has reaffirmed that position
in subsequent abortion decisions.
7 H.R. 1122, 105th Cong. (1997); H.R. 3660, 106th Cong. (2000); S. 1692, 106th Cong.
8 Message to the House of Representatives Returning Without Approval Partial Birth
Abortion Legislation, 33 Weekly Comp. Pres. Doc. 41 (Oct. 13, 1997).
9 P.L. 108-105, § 3, 117 Stat. 1201, 1206 (2003).
of the prescribed cause of action, appropriate relief includes money damages for all
psychological and physical injuries that arise as a result of the abortion.
The most notable difference between the PBABA and the other partial-birth
abortion bills previously passed by Congress is the inclusion of a significant findings
section in the law.12 Section 2 of the act, which comprises more than half of the
measure, identifies Congress’s findings with respect to partial-birth abortion. For
example, in this section, Congress “finds and declares” that a “moral, medical, and
ethical consensus exists that the practice of performing a partial-birth abortion . . . is
a gruesome and inhumane procedure that is never medically necessary and should be
prohibited.”13 Concerns about the safety of the procedure, raised in testimony
received during hearings in past Congresses, are also described in this section.
Finally, the findings section includes a discussion of Supreme Court cases involving
the Court’s deference to congressional findings.
In his introduction of the PBABA, the act’s sponsor, former Senator Rick
Santorum, indicated that Congress may not only engage in factfinding, but that the
Court will defer to such factfinding.14 Senator Santorum indicated that Congress “is
entitled to reach its own factual findings — findings that the Supreme Court accords
great deference — and may enact legislation based on these findings.”15
Gonzales v. Carhart and Gonzales v. Planned Parenthood
The decision to review both Carhart and Planned Parenthood provides the
Court with the opportunity to evaluate all of the legal theories asserted against the
constitutionality of the PBABA. In Carhart, the Eighth Circuit found the act
unconstitutional solely on the grounds that it does not include an exception for
abortions to protect the health of the mother. In Planned Parenthood, however, the
Ninth Circuit concluded that the act is unconstitutional for three distinct reasons: it
does not include an health exception; it imposes an undue burden on a woman’s
ability to have an abortion by prohibiting both the D&X procedure and the standard
dilation and evacuation (“D&E”) procedure;16 and it is unconstitutionally vague, thus
depriving fair notice to physicians about what is prohibited.17 The Court’s decision
12 See P.L. 108-105, § 2, 117 Stat. 1201 (2003)
14 149 Cong. Rec. S2523 (daily ed. Feb. 14, 2003) (statement of Sen. Santorum).
16 The standard D&E procedure is the most common method of abortion in the second
trimester. The standard D&E procedure is distinct from the intact D&E procedure, which
is performed generally in the latter part of the second trimester. For additional discussion
on D&E, see Shimabukuro, supra note 2.
17 In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the
U.S. Supreme Court concluded that a restriction on abortion that imposes an undue burden
on woman’s right to terminate a pregnancy would be found unconstitutional. The Casey
Court defined an undue burden as “a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” For additional information on Casey, see Lewis and
to review Planned Parenthood, made nearly four months after its decision to review
Carhart, was hailed by some members of the pro-choice community who believe that
the Ninth Circuit decision provides a more complete record on the likely impact of
The government has made three arguments in support of the PBABA.19 First,
the government maintains that the absence of a health exception does not impose an
undue burden on a woman’s ability to have an abortion. Second, the government
contends that the act is not unconstitutionally vague or overbroad. Finally, the
government argues that even if the Court is able to identify some aspect of the act
that is invalid, it may be possible to craft narrower injunctive relief consistent with
Ayotte v. Planned Parenthood of Northern New England, the Court’s 2006 decision
in which it held that the First Circuit erred in striking down a state parental consent
statute in its entirety.20
In Stenberg v. Carhart, a 2000 case involving the constitutionality of a Nebraska
partial-birth abortion statute, the Court invalidated the state law because it failed to
include an exception to protect the health of the mother and because the language
used to define the prohibited procedure was too vague.21 The government asserts that
a proper reading of Stenberg requires a statute that regulates abortion, but lacks an
health exception, to be upheld unless it would create significant health risks and
thereby impose an undue burden on a large fraction of women. The government
maintains that congressional factfinding supports both the position that the absence
of a health exception does not create significant health risks for a large fraction of
women, and that partial-birth abortion is never medically indicated to preserve the
health of a mother. According to the government, the testimony of physicians who
appeared before Congress and other evidence in the legislative record emphasize that
a ban on partial-birth abortion would not endanger a woman’s health because the
procedure is never medically necessary.
In addition, the government argues that congressional factfinding should be
afforded a high degree of deference. Citing Turner Broadcasting System, Inc. v.
FCC, two cases from 1994 and 1997, commonly referred to as Turner I and Turner
II,22 involving federal cable legislation and “must-carry” obligations imposed on
cable operators, the government notes that the Court has “deferred to congressional
Shimabukuro, supra note 6 at 14.
18 See Linda Greenhouse, Justices to Expand Review of “Partial-Birth” Abortion Ban, N.Y.
Times, June 20, 2006, at A14.
19 Brief for the Petitioner, Gonzales v. Carhart (No. 05-380), 2006 WL 1436690; Brief for
the Petitioner, Gonzales v. Planned Parenthood (No. 05-1382), 2006 WL 2282123.
20 126 S.Ct. 961 (2006).
21 530 U.S. 914 (2000).
22 512 U.S. 622 (1994) (“Turner I”); 520 U.S. 180 (1997) (“Turner II”).
factual findings in a wide variety of contexts and with regard to a wide variety of
constitutional claims.”23 In Turner I, the Court indicated that reviewing courts must
accord substantial deference to the predictive judgments of Congress when
evaluating the constitutionality of a statute. The Court observed that a reviewing
court’s sole obligation is “to assure that, in formulating its judgments, Congress has
drawn reasonable inferences based on substantial evidence.”24
The respondents, Planned Parenthood and Carhart, challenge the government’s
reliance on Congress’s findings and the belief that the Court owes great deference to
such findings, and also argue that the government’s use of a “significant health risks”
standard is inappropriate.25 Planned Parenthood maintains that the Stenberg Court
was guided by Planned Parenthood of Southeastern Pennsylvania v. Casey, the
Court’s 2002 abortion decision, and the conclusion that a medical emergency
exception should be broad enough to ensure that compliance with an abortion
restriction would not in any way pose a significant threat to the life or health of a
woman. Thus, in Stenberg, the Court held that to prevent a significant threat to the
life or health of a woman, a “method-specific ban” must have a health exception if
substantial medical authority supports the proposition that banning that method could
endanger women’s health.
Planned Parenthood contends that by requiring substantial medical authority “as
the quantum of proof for whether a health exception is constitutionally required,”
individual physicians are prevented from acting with unfettered discretion and
reasonable differences of medical opinion are tolerated.26 In short, Planned
Parenthood argues that the government’s failure to address the “substantial medical
authority” standard articulated in Stenberg is not “constitutionally tolerable.”27 By
considering only whether significant health risks are imposed on a large fraction of
women, some women could be forced to endure significant health risks in
contravention of Roe’s essential holding, that the health of pregnant women must
remain paramount when regulating abortion.
Planned Parenthood and Carhart dispute the government’s position that a
partial-birth abortion is never medically necessary. They assert that during
consideration of the act, numerous physicians and medical groups expressed concerns
about the legislation preventing them from using the safest procedures.28 Examples
of specific circumstances when D&X offered particular advantages were also
23 Brief for the Petitioner at 21, Carhart (No. 05-380).
24 Turner I, 512 U.S. at 666.
25 Brief of Respondents, Gonzales v. Planned Parenthood (No. 05-1382), 2006 WL 2725691;
Brief of Respondents, Gonzales v. Carhart (No. 05-380), 2006 WL 2345934.
26 Brief of Respondents at 13, Planned Parenthood (No. 05-1382).
27 Id. at 14.
28 Id. at 5 (“In 2003, during the 108th Congress which enacted the act, highly-credentialed
physicians and nationally recognized major medical groups, including [the American
College of Obstetricians & Gynecologists], submitted statements to Congress opposing the
identified. Some physicians stated that D&X involves less risk of uterine perforation
or cervical laceration, and reduces the risk of retained fetal tissue. The respondents
contend that a reduced risk of complications is particularly important for women with
serious medical problems because such women do not have the “physiological
reserves” to cope with the complications.29 Additional support for the use of D&X
under certain circumstances to preserve the health of the woman was also identified
during the district court trials of the two cases.
In addition to challenging the factual findings defended by the government, the
respondents question the government’s position that such findings demand great
deference from the Court. In particular, the respondents dispute the government’s
reliance on Turner I and Turner II.
Carhart contends that the Turner cases are inapplicable with regard to the
PBABA. Carhart argues that the Court has never deferred to congressional findings
in a case where Congress uses such findings in an attempt to alter the meaning and
scope of substantive constitutional rights.30 Carhart maintains that an extension of
Turner to this case would “effectively provide Congress with carte blanche to violate
the Constitution simply by making carefully chosen ‘findings.’”31 According to
Carhart, deference is appropriate only when legislation involves areas where
Congress has particular expertise and courts have previously shown deference to
Moreover, Carhart stresses that the Turner cases require deference only with
regard to Congress’s predictive judgments. Carhart argues that these judgments
pertain to “circumstances in which Congress must make its best predictions
concerning how an industry will evolve or how individuals will respond to economic
motivations.”32 From this viewpoint, Congress’s findings on the medical necessity
of the partial-birth abortion procedure do not involve similar predictions.
Like Carhart, Planned Parenthood believes that the factual findings are not
entitled to deference. Planned Parenthood argues that the findings are “simply a
bald-faced attempt to end-run Stenberg’s constitutional rule.”33 In addition, Planned
Parenthood emphasizes that the Turner cases require deference only when Congress
has drawn reasonable inferences based on substantial evidence. In this case, Planned
Parenthood believes that Congress’s findings are unreasonable and therefore not
entitled to deference. Planned Parenthood notes that all three district courts to have
considered the validity of the PBABA have concluded that the findings are not
reasonable and merit no deference. For example, the federal district court in Planned
29 See Brief of Respondents at 22, Planned Parenthood (No. 05-1382).
30 Brief of Respondents at 24, Carhart (No. 05-380).
32 Id. at 32.
33 Brief of Respondents at 24, Planned Parenthood (No. 05-1382).
Parenthood found that “all of the government’s own witnesses disagreed with many
of the specific congressional findings.”34
Undue Burden and the Overbreadth Doctrine
The Ninth Circuit’s invalidation of the PBABA was based, in part, on the statute
being unconstitutionally overbroad.35 The overbreadth doctrine is concerned
generally with a statute’s precision and the possibility of restricting constitutionally
protected activities. In Stenberg, the Court found that the Nebraska partial-birth
abortion statute was improperly overbroad because it defined a “partial-birth
abortion” in such a way as to prohibit the standard D&E procedure as well as the
D&X procedure. As a result, the statute imposed an undue burden on a woman’s
access to an abortion. Similar arguments have been made against the PBABA.
The government maintains that the federal definition for a “partial-birth
abortion” is different from the Nebraska definition and thus, should not imperil the
statute. The government argues that the federal definition differs in two critical
ways. First, by identifying “anatomical landmarks,” a partial-birth abortion under the
act could not encompass the D&E procedure.36 Under the act, a partial-birth abortion
involves the delivery of the fetus until either the entire fetal head or any part of the
fetal trunk past the navel is outside the body of the mother. During a D&E
procedure, the government asserts, only a small portion of the fetus, such as a foot
or an arm, may be brought outside the body of the mother. Second, the government
contends that the federal statute applies only where the person performing the
abortion also completes an “overt act” that kills the fetus.37 Thus, by requiring the
overt act, the act does not apply to the D&E procedure, where the delivery of a
portion of the fetus and the dismemberment of the fetus are indistinguishable.
The respondents maintain that the act’s definition for a partial-birth abortion
could still encompass abortions involving the D&E procedure. Findings by the
district court in Planned Parenthood indicate that there is no standard degree to
which a fetus is extracted during a D&E procedure before an obstructing part of the
fetus may be disarticulated or reduced in size. Thus, the respondents argue that the
extraction of the fetus to the point of the anatomic landmarks may occur during a
standard D&E abortion.
34 See Id. at 27.
35 See Planned Parenthood, 435 F.3d at 1179 (“Contrary to the government’s claim,
properly construed the act covers non-intact as well as intact D&Es. As a result, despite
containing some provisions that are different in form from those in the Nebraska statute, the
act is sufficiently broad to cause those who perform non-intact D&E procedures to ‘fear
prosecution, conviction, and imprisonment’ (citation omitted). The resulting chilling effect
on doctors’ willingness to perform previability post-first trimester abortions would impose
an undue burden on the constitutional rights of women.”).
36 Brief for the Petitioner at 31, Planned Parenthood (No. 05-1382).
The respondents also dispute the government’s reliance on the completion of an
overt act as sufficient to distinguish the partial-birth abortion procedure from the
standard D&E procedure.38 They maintain that during a D&E abortion, a physician
may have to perform the overt act of disarticulation or the compressing or
decompressing of a fetal part to complete the abortion. These acts are distinct from
the extraction of the fetus and would seem to constitute an overt act. The
respondents state that even the government has found disarticulation to be an overt
act. Carhart notes that the overt act requirement “does not effectively exclude D&E
procedures . . . because, as the Government concedes, the overt act may include
disarticulation.”39 If such an act is necessary and the fetus has been extracted to the
point of the anatomic landmarks, the physician will have arguably performed a
The doctrine of vagueness involves the clarity of a statute. A statute must be
drawn with sufficient clarity to inform people of the conduct that must be avoided to
avert the statute’s penalties. The Ninth Circuit concluded that the PBABA was void
for vagueness because it failed to clearly define the medical procedures that are
prohibited and thus deprived physicians fair notice of improper conduct and
encouraged arbitrary enforcement.40
The government contends that the Constitution does not require “impossible
standards of clarity.”41 Rather, a statute must simply give a person of ordinary
intelligence a “reasonable opportunity” to know what is prohibited, so that he may
act accordingly.42 The government believes that the act “readily satisfies the
relatively modest requirements of the void-for-vagueness doctrine.”43 The
government maintains that the statute prohibits a particular type of abortion in which
the physician “deliberately and intentionally” delivers a living fetus to a specific
anatomical point outside the body of the mother for the purpose of knowingly
performing an overt act that will kill the fetus. Moreover, the government asserts that
the act contains no ambiguous terms or phrases.
The respondents maintain that the act is unconstitutionally vague because it not
only fails to clearly define the prohibited procedure, but also forces physicians to
“guess at [the act’s] meaning and differ as to its application.”44 The respondents
stress that some D&E abortions do satisfy the anatomical landmark requirements
identified in the act, and thus would seem to constitute partial-birth abortions under
the statute. Similarly, some acts undertaken as part of a D&E procedure may
38 See Brief of Respondents at 41, Carhart (No. 05-380).
40 See Planned Parenthood, 435 F.3d at 1181-82.
41 See Brief for the Petitioner at 36, Planned Parenthood (No. 05-1382).
43 Brief for the Petitioner at 48, Carhart (No. 05-380).
44 See Brief of Respondents at 44, Planned Parenthood (No. 05-1382).
constitute an overt act for purposes of the statute, thus exposing a physician to
liability. Arguing that physicians will have to guess at the meaning of the act’s
language and the government’s “strained interpretations,” the respondents maintain
that the act is unconstitutionally vague.45
Narrower Injunctive Relief
Although it maintains firmly that the PBABA is constitutional, the government
suggests that it may be possible to craft more narrow injunctive relief, rather than
complete invalidation, if some aspect of the act is found unconstitutional.46 In Ayotte,
the Court concluded that the First Circuit acted inappropriately when it invalidated
a state parental consent statute in its entirety. Although the state law at issue did not
include a health exception, the Court held that a more narrow remedy was
appropriate because only some aspects of the law raised constitutional concerns. The
Court returned the case to the court of appeals with instructions to craft a narrower
The respondents assert that the act should be enjoined in its entirety. Citing
Ayotte, they discuss the three “interrelated principles” identified by Justice O’Connor
in that case that inform the Court’s approach to remedies.47 First, the Court should
not nullify more of a statute than is necessary. Second, the Court must be mindful
that its constitutional mandate and institutional competence are limited. Finally, the
Court cannot use its remedial powers to circumvent the intent of the legislature.
With regard to this third principle, Justice O’Connor noted: “After finding an
application or portion of a statute unconstitutional, we must next ask: Would the
legislature have preferred what is left of its statute to no statute at all?”48
If the Court determines that the PBABA is unconstitutional because of its failure
to include a health exception, the respondents contend that a remedy that somehow
adds a health exception to the act would be inappropriate.49 They argue that because
Congress expressly rejected even a narrow health exception when it passed the act,
the Court would engage in the kind of “line-drawing” it rejected in Ayotte if it
permitted such a remedy.
Similarly, if the Court determines that the act is unconstitutional because it is
vague or overbroad, the respondents argue that it would be impermissible to
“engraft” either a narrower definition for the term “partial-birth abortion” or a clearer
45 Brief of Respondents at 45, Planned Parenthood (No. 05-1382).
46 Brief for the Petitioner at 49-50, Carhart (No. 05-380); Brief for the Petitioner at 40,
Planned Parenthood (No. 05-1382).
47 See Brief of Respondents at 47-48, Carhart (No. 05-380); Brief of Respondents at 48-49,
Planned Parenthood (No. 05-1382).
48 Ayotte, 126 S.Ct. at 968.
49 Brief of Respondents at 48-49, Carhart (No. 05-380); Brief of Respondents at 47-48,
Planned Parenthood (No. 05-1382).
distinction between partial-birth abortion and a standard D&E abortion.50
Acknowledging the Court’s disposition of the Nebraska statute in Stenberg, the
respondents contend that the federal law should be similarly invalidated in toto.
According to the respondents, because the act implicates many, if not all, D&E
abortions, it unduly burdens a large fraction of affected women and must be facially
invalidated. Planned Parenthood also contends that any attempt to establish a
distinction between a partial-birth abortion and a D&E abortion would “merely
propagate the substantive problems with the act that lead to the need for a remedy in
the first place. In other words, it would be no cure at all.”51
The Court’s consideration of Carhart and Planned Parenthood has garnered
widespread interest not just because of the possible invalidation of the PBABA.
Justice O’Connor’s retirement in early 2006 and the appointment of two new
seemingly conservative Justices have prompted many to believe that the Court may
use this opportunity to establish new standards with regard to the evaluation of all
laws that regulate abortion. For example, the Court may explore whether a health
exception is always needed in an abortion-related statute. The Court may also clarify
whether the term “health” should continue to be broadly understood to include not
only physical, but mental and emotional health.
Considerable attention has focused on Justice Kennedy because of Justice
O’Connor’s retirement, his dissent in Stenberg, and his position as a “swing vote” on
the Court. While Justice Kennedy has been protective of the Court’s role in defining
the scope of constitutional rights, his support for the Nebraska partial-birth abortion
statute has been noted.
During the oral arguments in Carhart and Planned Parenthood before the Court
on November 6, 2006, Justice Kennedy’s questions and comments suggested
arguably that he may have some skepticism about the act.52 Justices Scalia and
Thomas, both part of the dissent in Stenberg, are widely expected to support the
validity of the PBABA. If they were joined by the Court’s newest justices, Chief
Justice Roberts and Justice Alito, as well as Justice Kennedy, the act would be
50 See Brief for Respondent at 49, Planned Parenthood (No. 05-1382).
51 Id. at 50.
52 See Transcript of Oral Argument, Gonzales v. Carhart, No. 05-380 (2006), available at
[ h t t p : / / www.supremecourtus.gov/oral_arguments/argumen t _ t r anscr i pt s/ 05-380.pdf ] ;
Transcript of Oral Argument, Gonzales v. Planned Parenthood, No. 05-1382 (2006),
available at [http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-
1382.pdf]. In an exchange with the Solicitor General, Justice Kennedy stated that the D&X
procedure could be warranted in some situations. In response to the Solicitor General’s
assertion that prohibiting the D&X procedure would pose little risk to a woman’s health
because the standard D&E procedure “has been well-tested and works every single time as
a way to terminate the pregnancy,”Justice Kennedy maintained: “[B]ut 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.”