National Abortion Federation v. Gonzalez (Challenging federal ban on late-term abortion)

This case concerns whether a federal law banning many late-term abortions is unconstitutional because it is unconstitutionally vague and fails to include an exception for a woman’s health. On Nov. 5, 2003, President Bush signed into law the so-called “Partial Birth Abortion” Ban Act of 2003, the first-ever federal law to ban medically approved abortion procedures — indeed, the first federal law to ban any medical procedures at all.

As the President signed the bill into law, RRP with the ACLU’s Reproductive Freedom Project (RFP) filed a lawsuit challenging the ban, representing the National Abortion Federation (NAF) and seven individual physicians. RRP and RFP argue that the ban is unconstitutional because: (1) it fails to contain an exception to preserve a woman’s health, as required by Roe v. Wade and subsequent cases; (2) it is an undue burden on access to abortion care because it is written so broadly that it prohibits a number of abortion procedures, including the safest and most common second-trimester abortion procedures; and (3) it is written so vaguely that physicians cannot determine what actions it prohibits, which is particularly problematic because the Ban imposes criminal penalties (two years in prison) on physicians who violate it by providing appropriate medical care to women who need abortions.

The Ban also represents an unprecedented federal intrusion into New York’s pro-choice policies and threatens the health of women in the state. New York has repeatedly rejected attempts to ban abortion procedures. Importantly, the U.S. Supreme Court has already concluded that any ban on abortion procedures must include a health exception. In 2000, the Supreme Court struck down a Nebraska state law that was nearly identical to the Federal Abortion Ban in Stenberg v. Carhart. Congress attempted to get around this ruling, when passing the Federal Abortion Ban, by stating that the procedures prohibited by the Ban are never medically necessary — ignoring significant medical opinion to the contrary.

Accordingly, on Aug. 26, 2004, Judge Casey struck down the Federal Abortion Ban because it failed to provide any exception that allowed the procedure when necessary to protect a woman’s health. Citing the requirements established by the Stenberg ruling, Judge Casey found the Federal Abortion Ban unconstitutional. His ruling joined decisions by federal district judges in the Ninth Circuit (California) and Eighth Circuit (Nebraska), which struck down the Ban in parallel cases brought by Planned Parenthood Federation of America and the Center for Reproductive Rights, respectively.

In September 2004, the Department of Justice appealed Judge Casey’s decision to the U.S. Court of Appeals for the Second Circuit, which heard the case on Oct. 6, 2005. On Jan. 31, 2006, the Second Circuit ruled that the Ban requires a health exception and asked for further legal briefing to determine how to remedy this violation. Two of the three judges on the panel (Judges Newman and Walker) ruled that the Federal Abortion Ban is unconstitutional. However, Judge Walker wrote a separate concurring opinion explaining that he felt bound by the Supreme Court’s 2000 decision in Stenberg v. Carhart which struck down a Nebraska statute similar to the Federal Ban. His discussion emphasized that he disagreed with the Supreme Court decision in that case. The third judge – Judge Straub – dissented and indicated that he would have upheld the Federal Abortion Ban. That same day, the Ninth Circuit in California also affirmed the lower court’s decision to strike down the Ban. These rulings join the earlier Eighth Circuit decision in the Nebraska case also holding the Ban unconstitutional. In May 2006, the Supreme Court agreed to hear the Nebraska case, and recently agreed to hear the California case as well.

Further proceedings in the New York case were stayed pending consideration of the companion cases in the U.S. Supreme Court, Gonzalez v. Planned Parenthood and Gonzalez v. Carhart. On Nov. 8, 2006, the Supreme Court heard oral argument in those cases. On April 18, 2007, in a 5-4 decision, the Court overturned the Circuit decisions and declared the Partial Birth Abortion Ban constitutional. In her dissent, Justice Ginsberg declared that the Court’s decision “cannot be understood as anything more than an effort to chip away at a right declared again and again by [the] Court.” Once the Supreme Court rendered its decision, the NYCLU case was dismissed. 

U.S. Court of Appeals, 2nd Cir., Index No. 04-5201-cv (direct)