Joanna Grossman and Linda McClain on Gonzales v. Carhart

On Findlaw, Joanna Grossman and Linda McClain comment on Gonzales v. Carhart.  Their column asks whether the federal ban's (and perhaps Justice Kennedy's) "ultimate aim [is] banning all second trimester abortions."

Here are my thoughts on that question, which has been troubling me too:

Has the Court Invited Bans on All 2nd Trimester Abortion?

It's a very interesting question whether Kennedy intended in his opinion in Gonzales v. Carhart to invite bans on D&E abortions, the most common method of second trimester abortions. On the one hand, it seems unlikely that he truly views D&E, in which the fetus is removed in pieces, as preferable to intact D&E. And the state's interest in the fetus, which the Court now recognizes as "compelling" throughout pregnancy, would certainly be more effectively served by the most sweeping ban possible. Indeed, the persistently vague descriptions employed in both the state and federal "partial-birth abortion" bans suggest an aim broader than at the intact D&E procedure alone. (Joanna Grossman and Linda McClain incorrectly state that what distinguishes intact D&E "is that the life of the fetus is terminated after it has partially left the uterus, rather than before." In fact, this also describes the typical D&E, the most commonly used method in the 2nd trimester. In that procedure, while the fetus is not removed intact, dismemberment usually occurs when one fetal part is pulled through the cervix while the rest of the fetus remains within the uterus. It is this fact that makes it so difficult for physicians to tell whether they are violating the "partial-birth abortion" bans. The authors of the bans, including the federal ban, have stubbornly refused to use the word "intact" when describing how the fetus is removed.)

On the other hand, in both Stenberg v. Carhart (striking down Nebraska's ban in 2000) and Gonzales v. Carhart, the State conceded that the bans would impose an undue burden were they to reach D&E abortions. Justice Kennedy seemed to concede this as well in his recent opinion. And he continued to employ the undue burden standard. Although he did so in the context of passages that appeared to apply a standard very close to rational basis review, Kennedy clearly preserved some continuing role for the "undue burden" standard. While it is quite certain that the threshold for such a burden is now exceedingly high, it would seem at least to prohibit virtually total bans on abortion at any given stage of pregnancy, which is what would occur if D&E were banned. While some of the Justices may be perfectly willing to abandon the undue burden standard and allow total bans on abortion, it is still not clear whether Kennedy would join them, thereby openly reversing his position in Planned Parenthood v. Casey.