us supreme court: 05-1382
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IN THE SUPREME COURT OF THE UNITED STATES
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ALBERTO R. GONZALES,
ATTORNEY GENERAL,
Petitioner
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:
:
v. : No. 05-1382
PLANNED PARENTHOOD :
FEDERATION OF AMERICA,
INC., ET AL.
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Washington, D.C.
Wednesday, November 8, 2006
The above-entitled matter came on for oral
argument before the Supreme Court of the United States
at 11:08 a.m.
APPEARANCES:
GEN. PAUL D. CLEMENT, ESQ., Solicitor General,
Department of Justice, Washington, D.C.; on behalf
of the Petitioner.
EVE C. GARTNER, ESQ., New York, N.Y.; on behalf of the
Respondent.
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C O N T E N T S
ORAL ARGUMENT OF PAGE
GEN. PAUL D. CLEMENT, ESQ.
On behalf of the Petitioner 3
ORAL ARGUMENT OF
EVE C. GARTNER, ESQ.
On behalf of the Respondent 27
REBUTTAL ARGUMENT OF
GEN. PAUL D. CLEMENT, ESQ.
On behalf of the Petitioner 51
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P R O C E E D I N G S
(11:08 a.m.)
CHIEF JUSTICE ROBERTS: Now we'll hear
argument in 05-1382, Gonzales versus Planned Parenthood
Federation of America.
General Clement.
ORAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF PETITIONER
GENERAL CLEMENT: Mr. Chief Justice and may
it please the Court:
This case presents the same basic
constitutional question concerning the Federal
Partial-Birth Abortion Act as the first case. Of
course, the Ninth Circuit in the decision under review
here went much further in invalidating the Federal act.
If I could begin by talking about whether what we're
talking about here is medical necessity or just some
marginal effect on the risks. I think in order to
fairly understand the argument that respondents are
making in this case, their argument has to be a matter
of simply marginal risks, because one illustration of
this, as I indicated in the first argument, if a doctor
really believes that a D&X procedure is the way to go in
a case then there's no ban on the procedure as such.
What the act bans is the infliction of the D&X procedure
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on a living fetus.
So if a doctor really thinks the D&X
procedure is the way to go, he can induce fetal demise
at the outset of the procedure.
JUSTICE BREYER: But the problem with this
is that there -- well, some doctors absolutely agree. I
mean, you know, my list over here, in which I have
hundreds of references from this thing, is doctor after
doctor who takes the other position, and they say:
Look, all that we're doing here is trying to remove the
fetus in a single pass. The fetus is going to die
anyway. It's not viable. We're trying to remove it in
a single pass, and the reason we're trying to do that is
if we don't, there may be bone fragments left inside the
womb. There may be fetal parts left inside the womb.
Every time you make another pass, it turns out there's
an added risk of scarring or hurting the inside of the
womb. If you try to induce demise through a drug
before, there is serious risks of introducing drugs into
the system. If the woman has uterine cancer, it's a
serious problem of not trying to get the child out as
quickly as possible. If you have preeclampsia or
eclampsia, where you're in a situation where the woman
will be dead in five minutes or 10 minutes, there could
be such a situation. The doctor thinks only one thing:
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Get it out as fast as possible. All right.
Now, I know there are doctors who think the
contrary. There's lots of testimony of the doctors who
think roughly along the lines I've taken. That was true
in Stenberg as well. So I think the issue is not that
you don't have support -- you do -- but that the support
is contraverted, and therefore, what do we do in that
case?
GENERAL CLEMENT: Well, Justice Breyer, let
me take as a point of departure the specific risks that
you associated with the injection that induces fetal
demise, because if there isn't a significant risk to
that injection, then all the other benefits that are
associated with the D&X procedure don't matter because
they can perform the D&X procedure. Now if you look
through the record on this point, I think you will not
find any testimony that supports a significant risk from
that injection. Yes, there are risks because there are
risks from any medical procedure, but the risks are not
significant.
JUSTICE BREYER: Is there a definition in
the law of significant risk, other than doctors saying,
I've been trained to try to save life and I want to
perform the safest possible way? Is there some legal
definition of what's a small risk, a big risk, a giant
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risk?
GENERAL CLEMENT: With all respect, I think
if a single injection that doesn't take any particular
risk other than the fact that it's an injection, if that
counts as a significant risk, then we might as well
strike the word "significant" from the discussion in
Stenberg. And Then I think what you have is that it's
very clear that their position is one of zero tolerance
for any marginal risk to maternal health.
JUSTICE KENNEDY: Well, my question is the
same as Justice Breyer's. Is there anything in the
literature, including medical literature, that talks
about significant or minor risks? I mean, you fill out
forms when you go to the dentist about risks. Now,
if -- if the chance of death is one out of 100, is that
significant? I mean, I don't know.
GENERAL CLEMENT: Well, it's a very
difficult question to evaluate in the abstract, Justice
Kennedy. And I think it actually, that question,
though, has direct bearing on this case, because
Congress after all found that there was some risks with
the D&X procedure. The most prominent one that I would
point to is the risk of cervical incompetence because
the D&X procedure does -- it does require additional
dilation, which can be associated with risks of losing
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future pregnancies. And that was born out, although not
at a level of statistical significance, in the Chasen
study by a plaintiff practitioner, where 2 of the 17
women who had the D&X procedure and were available for
follow-up care had an early pre-term pregnancy in the
follow-up.
So I think those risks are born out in the
only study that's available. And I think the question
becomes, now, if D&X were some life-saving procedure for
something that there was no other known cure for, you
might think, well, those are the risks you run. But
when there remains available the D&E procedure, which
has been well tested and works every single time as a
way to terminate the pregnancy, then I think risks that,
if you were talking about a life-saving treatment for
some life-threatening condition with no known cure,
those risks might not be significant in that context.
JUSTICE KENNEDY: Well, but 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.
GENERAL CLEMENT: There is a risk, Justice
Kennedy, but I think that, first of all, that even in
those limited circumstances, that the marginal risk
between the D&X procedure and the D&E procedure are
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really as far as I can tell nonexistent. Even in that
condition, unless there's some reason not to put the
injection in, if the doctor really thought the D&X
procedure was the way to go, he could begin, as
Dr. Carhart does in every single case after the 17th
week and start off with a digoxin injection or potassium
chloride injection, induce fetal demise, and he has
nothing to worry about from this statute.
And I think the very fact that they are
attributing significant risks to a single injection
shows that at bottom their position is a zero tolerance
position. And that's a legitimate position, I suppose,
but it's completely inconsistent with this Court's
precedence, most notably the Casey decision. Because if
all you needed to do is point to some marginal risk,
then this Court should have struck down the 24-hour
waiting period in the Casey decision, because the
plaintiffs there said the 24-hour waiting condition has
imposed significant risks. They were backed in that
point by an amicus brief by ACOG. But this Court didn't
say, well, you know, you're right, there's marginal
risks, we're going to apply a zero tolerance rule.
This Court instead upheld the 24-hour
period, even though it required overruling Akron I's
contrary decision and this Court pointed, of course, to
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Akron I as an exemplar of the pre-Casey decisions that
put too little weight on the legitimate countervailing
interest that the government has in this area.
And so with respect, I think that the
argument they are making is effectively an argument for
returning to Akron I and Thornburgh, where the rule of
law was that there would be no interference between a
doctor and the doctor's patient and the doctor's best
judgment as to how to treat the patient. This Court of
course consciously moved away from that in Casey and
expressly repudiated the language in Akron I and
Thornburgh to that effect.
JUSTICE STEVENS: May I follow up on a
question the Chief Justice asked you during the last
argument? We got into the government's construction of
the statute to narrow it to intentional situations.
Would you explain a little more exactly what situations
you would exclude and what you would include in your
interpretation of the statute?
GENERAL CLEMENT: Well, justice Stevens, let
me answer it this way and maybe if you want me to take
you specifically to the text, I can do that. But I
think the bottom line would be that under our view of
the statute, the most important thing is for those
doctors, like Dr. Cranen or Dr. Vivicar, who try to do
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the D&E procedure every time, and they succeed 99 or 100
percent of the time. Well, in the 1 percent of the
cases where they inadvertently deliver the fetus past
the anatomical landmark, we would say they are not
covered by the statute because they would not satisfy
what is really a compound mens rea requirement in the
statute, which requires that the delivery of the fetus
be intentional and deliberate and for the purpose of
committing the overt act of killing fetus. And in those
cases, of course, the intent of the doctor performing
the D&E isn't to deliver the fetus at all; it's to
deliver a fetal arm or a fetal leg as part of the
dismemberment procedure. So they would not be covered
by the mens rea requirement of the statute.
JUSTICE STEVENS: Would you measure the mens
rea at the outset of the procedure when they begin the
dilation a day or two before the actual operation is
performed, or is it at the time of beginning the
operation?
GENERAL CLEMENT: I think you could measure
it from either time point. I think the better view is
actually that it would be measured from the beginning of
the surgical operation, though the evidence of their
intent at the beginning of the dilation would be very,
very relevant. The reason I would say that is I think
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if somebody tries to dilate and then gets an extreme
amount of dilation at the point they start the
procedure, I think the intent of Congress would still be
for them to do a dismemberment procedure at that point,
rather than an intact removal.
But if this Court thought that the
constitutional line mattered on the answer to that, then
you could start from the beginning of the dilation
because I think in fairness the differences between the
two procedures are probably most manifest in the
dilation regimen. I also think, though, the record
supports the notion that there are differences even once
you begin the procedure as to how you manipulate the
fetus. I mean, Dr. Chasen for example, who is trying to
do the intact removal, says that after he has one leg
removed he effectively tries to reach back up and swing
the second leg across so he can remove the entire fetal
body. If you're -- obviously if you're performing a
dismemberment D&E you're not trying to swing the second
leg across; you're simply continuing to pull or twist on
the first extremity that prevents itself.
So I think there are differences even at the
procedural level. So I think that it would probably be
most consistent with Congress's intent to measure it
from the beginning of the surgical part of the
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procedure. But if you, as I say, in order to save the
statute, I think it's amenable to the contrary
interpretatio.
JUSTICE BREYER: I think you're wrong about
-- you're probably wrong about this. But just before
you leave, I mean, this is why it's so hard for me to
get into the medical procedure. I heard you as saying,
perhaps wrongly, that well, the doctor can always use a
lethal injection to kill the fetus. All right? That
rang a bell. So I look up and see what the lower courts
said about that and what they said is that nearly
everyone agrees it is not always possible to kill the
fetus by injection.
GENERAL CLEMENT: Oh, but can I respond to
that specifically?
JUSTICE BREYER: He says It is not always
possible -- what?
GENERAL CLEMENT: Can I respond to that
specifically?
JUSTICE BREYER: Well, he then goes; he
tells you why. He says there is a Dr. Knorr who says
you can't do it when the woman has a prior surgery,
pelvic inflammatory disease. And then another one says
they are not considered appropriate candidates because
of medical illness or cardiovascular disease, etcetera.
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So there's a list of medical situations where they
couldn't use a fetal injection.
GENERAL CLEMENT: Justice Breyer, if I could
respond to that.
JUSTICE BREYER: Yes.
GENERAL CLEMENT: I mean, there are certain
situations where the injection is contraindicated. I
think they'd be relatively rare situations. And I
think, you know, you could imagine I suppose that the
statute might pose a problem if you could identify
particular conditions where a D&X was particularly
useful, and those were also situations where an
injection would be contraindicated. I think, you know,
the universe of that may be zero, it may be one in a
million; I don't know, but it's very small.
Another point that's made in the record
which I think is important is they suggest well, you
know, maybe, maybe if you can't do the injection into
the heart of the fetus, then you're only going to be
successful something like 92 percent of the times. I
think though for purposes of the mens rea requirement
would certainly take care of any concern that the
physician would have --
JUSTICE BREYER: It's bothering me, why I'm
using this as an illustration is that there are so many
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of these things. Of course there are special cases. We
are only talking about a few, rare special cases. And
as soon as you tell me that what's supposed to happen is
that the judges are supposed to start deciding whether
this is one of these unusual cases or not, rather than
relying upon significant medical opinion, as this doctor
is now illustrating, I don't see how it's going to work.
At least I don't see how it's going to work without some
people suffering serious illness as a result of mistakes
by the judge.
GENERAL CLEMENT: Justice Breyer, I wish we
were talking about just a few rare cases because I think
if we were, there would be, the statute would be
amenable to not being applied in those rare cases. But
this is one thing that I think my colleagues on the
other side of the podium will agree with me on, is that
their doctors don't think that this is a safer procedure
in rare cases. They think it's a safer procedure every
single time. And that's why doctors like Dr. Chasen and
Dr. Frederickson try to do the D&X procedure every
single time, and they don't do it because they are
indifferent to health, I suppose. In their best
judgment they think that's the better way to go.
And it's just a question ultimately of
whether you're going to defer to individual doctors'
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judgments, even when it's very much of a minority
judgment; I mean anything you want to say about this
procedure it is the heterodox procedure, not the
orthodoxy. Most ob-gyns are going to do the D&E
procedure, not the D&X procedure. Even in the Nebraska
case three of the four plaintiffs don't try to do the
intact removal, so I think that just gives you, just a,
know you, anecdotal observation that you are talking
about the rare procedure, the heterodox procedure.
And so the question is when you have a
perfectly safe alternative, and you have some doctors
who like to do is it a different way, can Congress
countermand the doctors' judgment or do the doctors get
the final word?
JUSTICE KENNEDY: Suppose the doctor has the
intent, the good faith intent to perform a standard in
utero D&E, and he knows because of what's happened in
the last three months, with women with this particular
shaped fetus and particular position of the fetus, that
the chances are 50 percent, 60 percent that it's going
to be an intact delivery, at which point he is presented
with the problem.
Does he have the prohibitive intent?
Because aren't you, don't you have an intent to commit
the, most likely consequences of your acts?
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GENERAL CLEMENT: I don't think so. I mean
that might be a situation -- I don't know that that's a
realistic hypothetical, I mean, let me just say that.
If that turned out to be a realistic hypothetical, that
might be an example of where this question I talked
about with Justice Stevens might matter. Which is in
that case it might matter whether or not the intent was
measured --
JUSTICE KENNEDY: Well, that's important to
me because you seem to think that there is a standard
D&E. In reading the medical testimony it seemed to me
that D&Es ought to result in result in intact deliveries
quite without the intent of the doctor. Now maybe
that's wrong.
GENERAL CLEMENT: With respect, Justice
Kennedy, I don't think that's born out in this record,
it's the other way, which is doctors who want to perform
a D&X, often, in a majority of the cases end up
performing a D&E. But the doctors that set out to
perform a D&E, in Dr. Vibhakar's case she says a hundred
percent of the time, she ends up with dismemberment.
Dr. Creinen says it's 99% of the time that he ends up
with dismemberment.
CHIEF JUSTICE ROBERTS: And I gather your
submission is that we can tell who is setting out to
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perform which, by the dilation protocol. Those were the
record references that you gave earlier?
GENERAL CLEMENT: Yes. And you can, you
can, you can tell you can tell from the fact that a
doctor, like one of the plaintiffs in the Nebraska case,
Dr. Fitzhugh, says, that, well, I don't do the intact
removal because if I wanted to do that I would have to
do a second round of dilation with a second round of
laminarias. And of course, that second round of
laminaria is also a medical procedure. Like the
injection, every medical procedure has some risks, risks
of infection. If you looked at Dr. Creinen's testimony,
this is at 174 A to 177 A in the Eighth Circuit petition
appendix, he says that he doesn't like to do a second
round of laminaria dilation because it's painful to the
patient. And that's his testimony.
So there are countervailing indications
here. And as I say, this idea of trying to prohibit a
practice that involves further dilation is not an
irrelevant concern from a health standpoint, because one
of the things that Congress heard was that there were
risks to future pregnancies from cervical incompetence.
And that's a particularly important concern because
first of all, the plaintiff's experts aren't in a very
good position to evaluate that risk because they provide
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abortion services, not follow-up services. So they're
not in a good position to judge that risk.
Second of all, the only study we have here
points out that there is a greater incidence of that
preterm delivery in the group that had a D&X procedure.
Now again they say, they are going to come up and say
well it's not statistically significant. But the
numbers I think are striking. They had 17 women in the
group that had a D&X and came back. Two of them had a
preterm pregnancy. The D&E group was much larger, 45,
and two of them had a preterm delivery. Now I think as
a commonsense manner, if you know that you were going to
be in a room with 17 people where two people were going
to have something bad happen to them, or in a room with
45 and two -- bad things were going to happen to two, I
know which room I'd like to be in. And all I'm pointing
out --
JUSTICE BREYER: Yes, once you're making a
point of that study, I think it was also the case that
the ones that had the intact were older or rather
further along in pregnancy; isn't that true?
GENERAL CLEMENT: That's right.
JUSTICE BREYER: Therefore the risks were
greater.
GENERAL CLEMENT: Well if I could just --
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JUSTICE BREYER: And therefore since the
risks were greater, the other side says that this
actually shows it was safer. I mean, I don't know how
to evaluate that.
GENERAL CLEMENT: I think it's even more
complicated than that, Justice Breyer, because in fact,
you're right that the D&X patients were at a further
gestational age, but the D&E patients were actually
older. And so I think --
JUSTICE BREYER: I missed that.
GENERAL CLEMENT: Right. But it happens
that, the D&E patients were on average two years older,
which I think also would be associated with greater
risk. So I think it's a wash. But I still think the
Chasen study net is quite helpful to our side. For one
thing, this is a study put together by one of the
plaintiff practitioners, a plaintiff in the Southern
District case, based on a study of his own practice.
And of course one of the intuitions about the D&X
procedure is because you remove it intact it's going to
be a faster procedure and there is going to be less
blood loss.
JUSTICE GINSBURG: General Clement --
GENERAL CLEMENT: Well, what did he find
when he studied that? It was exactly the same for those
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two procedures. I'm sorry.
JUSTICE GINSBERG: Because your time is
running out I did want to ask you about a feature of
this legislation that hasn't come up so far, and that is
perhaps stimulated by Stenberg. But up until now, all
regulation on access to abortion has been state
regulation and this measure is saying to the states,
like it or not, the Federal Government is going to ban a
particular practice and we are going to take away the
choice from the states, in an area where up until now
it's, it's been open to the states to make those
decisions. How should that weigh in this case? And it
is something new.
GENERAL CLEMENT: Well, I mean I don't think
it should figure in this Court's decision. I mean
principally because the other side in neither case makes
a challenge based on the Commerce Clause, and I suppose
there is two reasons for that. That legal reason that
they don't bring the challenge is because there is a
jurisdictional element that I think would address the
challenges as a doctrinal matter. The practical reason
I think is because this isn't the only instance in which
the Federal Government has gotten involved to address
issues related to the abortion context.
JUSTICE GINSBERG: Well I know, when it is a
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question of funding --
GENERAL CLEMENT: Well but also access to
clinics, in the the face act, which is also --
JUSTICE SCALIA: The bes example where
government has gotten involved in overriding what the
states want to do is Casey. It seems rather odd for
this Court to be concerned about stepping on the toes of
the states.
GENERAL CLEMENT: Well -- it's certainly
true that abortion has been dealt with at a Federal
level one way or another since 1973. So I think that's
also part of the backdrop, but I also think, I mean, you
know, the Federal Government gets involved in this
issue, you know, depending on your perspective, for good
or for harm. It's there to protect access to the
abortion clinics --
JUSTICE STEVENS: General Clement, That
brings up a question I was intending to ask you. I
notice the finding says nothing about interstate
commerce but the statute says any physician who in or
affecting interstate commerce performs the procedures.
Does that mean that the procedure is performed in a free
clinic, as opposed to a profit organization, it would
not be covered?
GENERAL CLEMENT: Justice Stevens, I don't
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think we have taken, the Federal Government hasn't taken
a definitive position on that. I think it could be
interpreted either way. I think my understanding is the
face context, a free clinic would be covered. There's
not a jurisdictional element in the face statute. So
there may be differences as, in application.
JUSTICE STEVENS: But how could the Commerce
Clause justify application to a free clinic? I don't
understand.
GENERAL CLEMENT: Well, I think by, I mean,
you know, the Court's precedents in other areas has
suggested it's just not a matter of whether the ultimate
service is provided in commerce but in order to get the
services they have to take --
JUSTICE STEVENS: Activities that --
GENERAL CLEMENT: Yes. Exactly. I don't, I
mean, that hasn't been briefed up in this case. If it
had been we'd probably have a definitive position one
way or another. But I don't think the constitutionality
in this facial challenge where that hasn't been a
feature of the challenge turns on the answer to that
question one way or another.
I think in regards to the Chasen study the
last thing I would say about it though is that it's
important because most of the arguments on the other
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side are intuitive arguments. They are intuitive
arguments, that they would be less passive, so that will
be more safe. And what I think is telling is that the
same intuition would lead to the notion that it would be
quicker and there will be less blood loss. And when
that was actually tested in a controlled study, it
turned out not to be the case.
The last thing I'll say about the Chasen
study is there was this indication that the two most
serious complications were associated with the D&E
procedure. But one thing that I think is important to
understand about the Chasen study is it is a
retrospective study of Dr. Chasen and his partner's own
practice. Now what they do in every case is they set
out to perform a D&X procedure, and so what they are
studying and what they call the D&X procedures, that
cohort are the times when they tried to do a D&X
procedure and they were successful.
The D&X cohort from this study, is you know,
are those circumstances where he and his partner tried
to do a D&X procedure, weren't successful and did a D&E
procedure.
Now why is that significant? Because it
shows as Chasen noted in his article that in those
situations that were D&Es and they were associated with
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serious complications there was nothing he could have
done about it. He could have performed a D&X, he tried
to perform a D&X and it wasn't successful, so he ended
up performing a D&E. And so I really think on balance
the Chasen study ends up supporting our position,
because the first time you have any kind of controlled
study what you find is that some of the intuition turns
out not to be true, and the safety benefits from these
are a wash, and the one sort of loose end from the study
is the threat that you do see from the greater dilation.
Now it's not statistically robust, but I think that it
does bear out one of Congress's concerns.
JUSTICE BREYER: Could you address the
question I asked respondent's counsel in the last case
about the availability of other facilities? Because
there are alternate methods but some of these require
hospitalization, and my understanding is the hospitals
aren't always open.
GENERAL CLEMENT: Right, I -- I --
JUSTICE BREYER: So it doesn't make much
sense to say well, there is an alternate procedure if
you can't be admitted to the facility.
GENERAL CLEMENT: Sure. And as I tried to
indicate in rebuttal, that's really not a concern
because, the difference is whether some clinics will
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GENERAL CLEMENT: Well, only with the
caveat, though, is that I think this Court really didn't
have to confront the second concern because it had the
first concern. And if you thought that a leg, which
this Court did, was a substantial portion, and that was
the, that was the act that induced fetal demise, either
way it was covered no matter what your purpose was,
because the doctor's purpose in removing the leg was to
induce fetal demise.
Here the compound mens rea requirement works
with the anatomical landmark language, so that what you
need to satisfy the statute is the deliberate and
purposeful intent to remove the fetus past the navel
with the purpose of performing an overt act that will,
will lead to fetal demise, which is not covered when you
don't even have the intent to take it out of the -- past
the anatomical landmark in the first place and you're
trying to do something that's going to take place in
utero.
If I could reserve the balance of my time
for rebuttal.
CHIEF JUSTICE ROBERTS: Thank you, General
Clement.
Miss Gartner.
ORAL ARGUMENT OF EVE C. GARTNER
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ON BEHALF OF RESPONDENTS
MS. GARTNER: Mr. Chief Justice and may it
please the Court:
In Casey, this Court reaffirmed that the
government cannot ban pre-viability abortions. Despite
Casey, Stenberg suggested that there is a narrow
category of pre-viability abortions, intact D&Es, as
this Court understood that term in Stenberg, that can be
banned so long as the ban contains a health exception.
But I'd like to leave the health exception question
aside for a minute and turn to the scope of the law that
Congress has enacted here.
The question is whether Congress can enact a
pre-viability abortion ban that does not track the
hallmark of intact D&E abortions as this Court
understood that term in Stenberg and by doing so to ban
a substantially greater array of abortions than would be
banned had the law faithfully tracked the language in
the Stenberg opinions about what constitutes an intact
D&E. And I'm referring both to the majority opinion in
Stenberg and in the dissents.
It is our position that this Court must
reject Congress's effort to exploit the limited license
that this Court seemingly granted in Stenberg because to
allow such an expansion of pre- viability abortions that
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can be banned would set the stage for continued
legislative efforts to ban other iterations of the
classic D&E method of abortion until truly there would
be nothing left at all of Casey's holding that it is
unconstitutional to ban pre- viability second trimester
abortions.
The government in this case has conceded
that the act bans more abortions than merely the intact
D&E as this Court understood it in Stenberg. But I want
to highlight for the Court how the language of this act
departs from the hallmarks of intact D&E and how these
departures place doctors at risk of prosecution for the
very facet of D&E abortions, and by that I mean all D&E
abortions, that enhance their safety.
There is three respects in which the act
departs from the hallmarks of intact D&E as understood
in Stenberg. First, the act does not require breach
extraction of an intact fetus to the head, one of the
primary hallmarks that this Court understood in
Stenberg. Instead, the act applies once the fetus is
extracted past the navel, a far more frequent occurrence
than extraction to the head. And in fact the government
in its briefing both in their initial brief and in their
reply concedes that in any of what the government calls
standard D&Es a living fetus can be extracted past the
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fetal navel before demise occurs.
In addition, the act does not require the
fetus to be delivered intact at the end of the
procedure, another component of what is considered to be
a hallmark of intact D&E in Stenberg.
In fact, the word intact appears nowhere in
the statute and again the government concedes that some
non-intact D&Es would violate this law as drafted. In
fact, the government contends that one of the
"advantages," in its words, is that the law would ban
more than intact D&E. And finally, the act does not
require that the fetus be extracted in a breach
presentation at all, even though in Stenberg the Court
thought of the breach extraction as one of the hallmarks
of intact D&E.
Now this --
CHIEF JUSTICE ROBERTS: Do you -- I think
this question was asked earlier, but I want your
position. How often does the vertex delivery occur in a
D&X procedure? I --
MS. GARTNER: Your Honor, two, two doctors
in particular, Dr. Chasen and Dr. Hammond, testified
that they have used in their practice the vertex
presentation to treat women who, as Ms. Smith indicated,
the fetus suffered from a serious lethal anomaly that
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involved a greatly distended abdomen. The fetus
presented in a head-first presentation. The head
delivered through the dilated cervix, but the only way
to complete the procedure was to reduce the size of the,
of the abdomen that was, that was anomalous in size
because of the underlying fetal condition.
In those cases, those doctors testified that
that was absolutely the safest way to terminate the
pregnancy for the woman. The only alternative way would
have been abdominal surgery, which, which all the,
virtually all of the doctors, even the government's
doctors, agreed carries far greater risks for the woman
than a vaginal surgical abortion.
JUSTICE SOUTER: Miss Gartner, with regard
to your argument that the statute here did not track
what you have described as the characteristics, the
hallmarks, I think the answer from the other side is
that the, the theory of this statute is a theory of a
clear line between a legitimate abortion and
infanticide. And if that is the theory, then whether
it's a breach delivery or a non-breach delivery is
irrelevant. What would your answer be to that?
MS. GARTNER: Well, two answers, Your Honor.
First of all, the clear line that this Court drew in
Stenberg was essentially the line at intact delivery to
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the head followed by an act that results in fetal
demise. Very clearly what this Court understood in
Stenberg could -- was, was an intact D&E and several
members of the court suggested that that would be
constitutional to ban.
In addition, the government today seems to
suggest --
JUSTICE SOUTER: Well, we said that that
would be an appropriate line. But the question here is
is it really essential to an appropriate line that we
talk, that we describe it as a, as a breach delivery or
a non-breach delivery.
MS. SMITH: Your Honor, I would agree that
of the three hallmarks that the Court recognized in
Stenberg, the breach delivery is probably the least, the
least central; that the other two hallmarks, the
extraction to the head followed by a completely intact
delivery after demise, were absolutely the hallmarks
that everyone on this Court understood in Stenberg, and
those, those lines, are nowhere in the statute that
Congress enacted.
Today General Clement seems to be arguing
that there is a different line that's protected in this
statute, a different line than the Court recognized in
Stenberg, and the line is about where the fetus is when
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demise occurs. But, but this Court in Stenberg
understood that even in a classical D&E, a standard D&E,
as the government calls it, part of the fetus is outside
the woman's uterus when fetal demise occurs. The Court
recognized that fetal demise occurs even in a standard
D&E when, after a part of the fetus is drawn out of the
women's uterus, resistance is met, disarticulation
occurs, and after that fetal demise. So even in a
standard D&E the line that the government today is
offering up, the line of inside or outside the uterus,
would be violated in any D&E --
CHIEF JUSTICE ROBERTS: I understood the
statute here to apply only when the, in the words of the
statute, that the partially delivered infant is killed
after passing the anatomical landmark.
MS. GARTNER: Well, that's right, Your
Honor.
CHIEF JUSTICE ROBERTS: So we just say your
hypothetical about extraction of the leg it seems to be
would not be covered by the statute.
MS. GARTNER: Absolutely, Your Honor, that's
right. But what I'm saying is that some part of the
fetus, no matter what, is outside the women's uterus,
whether it's an intact D&E, a non-intact D&E --
JUSTICE SCALIA: But we don't talk about a
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leg dying. We talk about the fetus dying, I think, and
I think that's not the leg.
MS. GARTNER: I think the important point is
that the government acknowledges that in a standard D&E,
what it calls standard D&Es, the fetus can be extracted
past the anatomical landmark. So the anatomical
landmark isn't a bright-line decision between intact
D&Es and non-intact D&Es. But in Stenberg this Court
drew that line between intact D&Es and non-intact D&Es.
It suggested --
CHIEF JUSTICE ROBERTS: Where does the
government concede that in a standard D&E the living
fetus is extracted past the anatomical landmark?
MS. GARTNER: It does so --
CHIEF JUSTICE ROBERTS: I thought that was
-- I thought their position was that that was not the
standard D&E.
MS. GARTNER: Right. It does so in two
places, Your Honor. On page 32 of their initial brief
they refer to, they describe two circumstances that they
say or two parts of the law that they say saved the law
from banning non- intact D&Es. The first is the
anatomical landmark and the second is the requirement of
an overt act. They describe the overt act as saving
non-intact D&Es that were not already excluded from the
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do that, then the doctor is not liable?
MS. GARTNER: Well, Your Honor, I think this
gets to the point I was going to make about the safety
of doing abortions in a way that would be banned by the
law, and that's that in every D&E, regardless of whether
the intent is to do an intact D&E or not an intact D&E,
the intent is to minimize the insertion of instruments
into the uterus and to extract the fetus as intact as
possible, because each insertion of the instruments
increases the risk of causing harm to the woman's
uterus. And so in every D&E, regardless of whether the
physician expects to have an intact fetus at the very
end of the procedure, they do want to minimize the --
the amount of instrumentation and bring it out in as few
parts as possible and so there is a deliberate and
intentional delivery of the fetus as far as possible
which often can be past the navel, though in most cases
it won't be up to the head. So that's why the line that
this Court drew in Stenberg is the line that first of
all delineates between two distinct procedures: intact
D&E and nonintact D&E. The difference between those two
procedures is whether the fetus is extracted to the head
or not to the head before demise occurs. This, this
statute doesn't draw that line. It draws a different
line and in doing that, it captures far more abortions
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than the other law would and, and the key thing is that
if this law stands with the past the navel line the
inevitable result is that doctors in order to try to
avoid the reach of this statute will have to stop trying
to minimize the instrumentation and stop trying to draw
the fetus out as intact as possible because often when
that happens --
CHIEF JUSTICE ROBERTS: My concern with your
argument is it's not just the anatomical line. The
statute, I guess the Solicitor General referred to this
as the multiple mens rea requirement. It's not simply
the extraction to a particular anatomical landmark but
with the purpose of demise at that point. So, if in the
typical D&E the demise is going to be accomplished
before extraction passed the anatomical landmark. It
wouldn't be covered by this law.
MS. GARTNER: Well, Your Honor, I guess to
some extent it comes down to what intent means but if
what it means that the doctors would prefer, would like
it to come out as far as possible before they have to
take any, any kind of action to clear an obstructing
part, that's, that's what they intend.
The doctor only uses disarticulation when
it's necessary to clear an obstruction because the
continued extraction --
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CHIEF JUSTICE ROBERTS: What about the
Solicitor General's reference with respect to the
differing protocols on dilation which suggests a
different intent going into the procedure for the D&E
and D&X?
MS. GARTNER: Well, two points, Your Honor.
One is the statute makes no mention of dilation
protocols even though some group like the American
College of Obstetricians and Gynecologists when they
intend to define an intact D&E abortion they've defined
it specifically by reference to dilation protocols. And
some state statutes have also used dilation protocols as
part of the definition of intact D&E but this statute
makes no mention of dilation protocols.
JUSTICE SOUTER: No, but the dilation
protocol certainly would be relevant on the question of
intent which this statute does refer to, wouldn't it?
MS. GARTNER: I think it would be relevant,
Your Honor, but I think it's not -- it really can't be
dispositive of the physician's intent be --
JUSTICE SOUTER: Because?
MS. GARTNER: Some doctors use a one day
protocol, some doctors use a two day protocol but that
in of itself isn't --
JUSTICE SOUTER: But you're telling us that
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some do this and some do that and the question is why
wouldn't following one protocol rather than another
protocol very significant evidence of what was intended?
MS. GARTNER: Because some doctors use a two
day protocol, Your Honor, even if they don't expect to
get an intact D&E. There is not a direct correlation,
there's some correlation between the amount of dilation
and the percentage of times that a physician achieves
intact D&E. To some extent doctors also use other
agents to dilate, they use misoprostol and medication.
That even if they're doing a one day protocol --
JUSTICE SOUTER: Do we have any indication
in your case about the effective safety of any other
aspect of this procedure if these doctors would change
their, their method of operation and go to a one-day
protocol?
MS. SMITH: In terms, one-day protocol?
JUSTICE SOUTER: Yes.
MS. GARTNER: Some doctors -- I think one
thing is that doctors perform abortions most safely when
they do them in a way that they are most accustomed do.
They are doing them the way they were trained to do
them.
JUSTICE SOUTER: I don't want to cut your
answer but I want to know whether there is anything
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specifically in the record in your case that bears on my
question.
MS. GARTNER: There is nothing specific
about doctors changing protocols. There is significant
evidence about increased risks if doctors were to stop
trying to extract the fetus as intact as possible.
Several witnesses, including several government
witnesses have agreed.
JUSTICE SOUTER: Do you mean start and stop
with a different intent?
MS. GARTNER: That's right, Your Honor.
JUSTICE SOUTER: As opposed to adopting a
completely different procedure entirely -- a different
protocol entirely.
MS. GARTNER: Well, no actually even the
other government witness, Dr. Cook, agreed that -- and
the other government witness, Dr. Lockwood, agreed that
removing the fetus as intact as possible in any D&E is
the safest way to perform a D&E procedure regardless of
whether the intent was to do an intact D&E procedure.
JUSTICE BREYER: For such a doctor, a doctor
who thinks that I'm trying to remove in this emergency
situation as much of the fetus as possible as quickly as
possible, would such a doctor often, never, sometimes be
thinking what I think is likely to happen here, I'll
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make a pass at the fetus, try to draw it out, and what's
most likely to happen is that the trunk, a lot of it
will come out and then the head of the fetus will
dismember, after a lot of the trunk comes out.
Is that --
MS. GARTNER: I would say it certainly is
not never and it's not always. It's somewhere in
between but I think --
JUSTICE BREYER: So if a doctor is being
honest about that, is there any way that such a doctor
could escape the language of the statute on the
government's interpretation?
MS. GARTNER: I think not Your Honor because
the intent is to extract the fetus as intact as
possible. In a good many cases it will be extracted
past the navel though not to the head. So the doctor
falls within the deliberately and intentionally language
and I don't think, the government also proffers the idea
of specific intent, but again because this statute
doesn't track the actual differences between the two
procedures, the having the specific intent doesn't save
the statute. The doctor may intend to perform the
abortion as defined in this law but not intend to do an
intact D&E and that was the testimony in these cases.
JUSTICE STEVENS: Would you clear up one
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thing for me? You say it's always the doctor's intent
to extract as much as possible before causing fetal
demise. I thought there was significant number of cases
in which there was a deliberate decision to cause fetal
demise before I start any extraction?
MS. GARTNER: Well, Your Honor there is
testimony in our case, in the California case, that a
few doctors that testified said the beginning at
approximately 22 weeks of pregnancy, they offered women
the option of undergoing a fetal demise injection before
the procedure began. But the testimony was also
overwhelming, including from the government witnesses,
that that injection procedure carries significant risks
for some women. For example, women with either
susceptibility to infection, like women with HIV or
hepatitis, you definitely don't want to do an additional
injection. That in addition --
JUSTICE STEVENS: From the point of view of
the doctor it would be the safest thing to avoid
criminal responsibility.
MS. GARTNER: It -- but the problem is as
the district court, found it's an unnecessary medical
procedure that subjects the woman to additional risk.
Now if the doctors --
CHIEF JUSTICE ROBERTS: Why would the
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doctors in that case propose that option to their
patients?
MS. GARTNER: At 22 weeks and later, as the
abortion is getting closer to the viability line, the
doctors feel that some women would feel more -- it's for
psychological reasons for the woman. That's why it's an
offer; it's not a requirement.
CHIEF JUSTICE ROBERTS: Well, what -- what
are the psychological reasons?
MS. GARTNER: If she would prefer that the
fetus undergo demise before the extraction begins, some
women may feel better about that. The testimony was
also that other women absolutely don't want that. And
you know, feel that they -- you know, it's a very
personal question that really goes to the heart of this
case. It's a very personal decision how the woman who
has made this very difficult moral/religious decision to
end her pregnancy, often for very tragic reasons, how
does she want the fetus to undergo demise? Different
people will have different views about this. But here
Congress has legislated that for the woman and done so
pre-viability, when the state interests really are
insufficient to require the woman to undergo a procedure
that is not marginally safer but significantly safer for
her.
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CHIEF JUSTICE ROBERTS: Well is there a
difference between, in your view, in the
constitutionality, marginally safer and significantly
safer? In other words, I take it we don't, you
obviously were here for the discussion in the prior
case. We don't have evidence on marginal significant.
And do you think it matters; if in fact it's a marginal
difference in safety, does that, is that still enough to
override Congress's interests in this case?
MS. GARTNER: Yes, Your Honor, it does
matter. Marginal safety would not be enough but I think
what is important is that you assess, you assess the
question of marginal versus significant by looking at
the averted harms. It's not a question of quantifying
how many women would avert the harms.
CHIEF JUSTICE ROBERTS: Well, do we just
look at the averted harms, or -- or do we, or Congress,
also look at the incidence of the averted harms? Is it
a theoretical -- is it a theoretical inquiry or is it to
some extent a quantified inquiry?
MS. GARTNER: Well, Your Honor, I think it
can't be a quantified, quantified inquiry. Ultimately
this Court has never looked at the constitutional
question of when an abortion statute interferes with a
woman's health to an extent that it's unconstitutional,
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in terms of how many women are affected. The question
is, is how seriously would a woman be affected if she
affected? And the evidence here is overwhelming.
JUSTICE STEVENS: Doesn't the answer to my
question turn largely on the age of the fetus? Isn't it
a vast difference between the kind of decision the
mother that is to make if it's a 14 week fetus on the
one hand and 26 week fetus on the other?
MS. GARTNER: Well, I'm not sure if that's.
JUSTICE STEVENS: For example, one of the
congressional interests described in the finding is
avoiding fetal pain to the fetus. And I guess they
don't suffer any pain prior to 20 weeks but after 20
weeks there is some risk of pain. And that seems to me,
that could affect a calculus very dramatically for the
woman making the decision.
MS. GARTNER: For the woman, but I think the
important point, Your Honor, is that this, that the
intact D&E procedure, and the testimony was overwhelming
to this effect, that -- in some cases this procedure
averts catastrophic health consequences for the woman.
It averts uterine perforation, it averts the spread of
sepsis or infection; it averts the spread of --
potentially the spread of malignant cancer throughout
the women's body.
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CHIEF JUSTICE ROBERTS: If -- if the woman
can take into account the impact on the fetus at a
certain point in time, and your option, as you said some
physicians give, of fetal demise prior to the procedure,
why is that beyond the scope of things that Congress can
take into account?
MS. GARTNER: Because what Congress has done
here is take away from women the option of what may be
the safest procedure for her. This Court has never
recognized a state interest that was sufficient to trump
the woman's interest in her health. If the woman and
her doctor together agree that proceeding in this way is
going to avert significant health risks to her, and the
testimony here is overwhelming that there are situations
where that occurs, this Court has never recognized a
state interest that was sufficient to trump that woman's
paramount interest in her health.
JUSTICE SOUTER: Well, but we have -- we
have said that that judgment has to reflect some kind of
substantial medical judgment. It can't be an
idiosyncratic determination by one doctor alone.
MS. GARTNER: Absolutely, Justice Souter.
JUSTICE SOUTER: So to that extent --
MS. GARTNER: And that's -- and I take that
-- and maybe that was my -- and I take this as a given
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here. Given the overwhelming testimony from doctors
from the American College of Obstetricians and
Gynecologists, and this Court's holding in Stenberg,
where the record was less robust, that we have that
substantial medical authority here. And given that
substantial medical authority, doctors need to be able
to use their appropriate medical judgment, in the words
of Roe and Casey, to provide this procedure for their
patients when in their judgment -- not in their
unfettered discretion, but in their sound clinical
experience and medical judgment it's going to be the
safest for her and avert catastrophic health
consequences.
So this is -- again, it may be that the
number of women is not large, but for the women who are
affected the impact of this ban is undoubtedly
significant.
JUSTICE KENNEDY: I don't want to
misinterpret the Attorney General, the Solicitor
General's remarks but he indicated in those case there
could be an as applied challenge.
MS. GARTNER: Well, I think, Justice
Kennedy, you answered that question as well as I could.
If a woman had to wait until she needed a banned
abortion for her health, and file a proceeding wait for
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the court to grant relief, undoubtedly she would not get
the relief she needed in time.
JUSTICE KENNEDY: Well, the answer that the
Solicitor gave -- General gave to that was, you could
have a pre-enforcement proceeding. That you can back up
the clock.
MS. GARTNER: Right. I'm not sure that I
actually understood his answers though, because I think
that that's what we have here, in fact, is a
pre-enforcement proceeding to, to determine that this
law blanketly banned intact D&E abortions even when the
doctor believes it's, it would have significant health
benefits for the patient.
So this is not, I want to go back to,
because my light is on, Stenberg suggested that there
was a line that could constitutionally be drawn between
banned, between permissibly banned procedures and, and
procedures that have constitutional protection. But the
statute didn't draw the line and it didn't draw that
line in two ways. This, this statute defiantly rejected
this Court's view that because there is substantial
medical authority for the proposition that intact D&E is
sometimes safer, a health exception is absolutely needed
here, and they also refused to draw the line at what
this Court understood was the defining difference
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between intact D&E and nonintact D&E.
In the Solicitor General's reply brief they
talk about the promise of Stenberg. Well, the promise
of Stenberg was absolutely betrayed by Congress in this
case in both respects, both in terms of preserving the
health of the woman and allowing her to use what a
substantial medical authority thinks is the safest
procedure for the woman, and in terms of holding the
line at a limited ban on pre-viability abortions given
that Casey recognized that women have a constitutional
right to choose to end their pregnancy pre-viability.
I was going to address briefly some of the
concerns that the Solicitor General offered about some
of the health risks of intact D&E and cervical
incompetence. Just briefly. The, all of the government
witnesses in this case agreed that the congressional
findings completely overstate any risks of intact --
there is no, there is no reasonable basis to conclude
that intact D&E puts a woman at any greater risk of harm
than standard D&E, and in fact the evidence is quite to
the contrary. It averts catastrophic health
consequences in some circumstances. There is no strong
evidence that intact D&E has any impact on cervical
incompetence.
The Solicitor General talks at length about
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the two cases in Dr. Jason's study, but both of those
women who experienced cervical incompetence had, in
future pregnancy, had had cervical incompetence in prior
pregnancies, and that's a condition that tends to stay
with the woman. So there is no reason to think that it
was the intact D&E itself that caused cervical
incompetence in the subsequent pregnancies because of
intact D&E.
And finally, yes, it's true that Dr. Chasen
used intact D&E or attempted to use intact D&E in all
cases, and the women who had D&Es, three of them
suffered very serious medical consequences after having
a D&E. The Solicitor General says well, Dr. Chasen tried
to do intact and he failed so, so there was really
nothing to say about this law. But the fact is, if this
law went into effect, no woman could have intact D&E. So
even though, even in those cases where Dr. Chasen was
able to do intact D&E, he would no longer be able to do
that. So the incidence of those women having
catastrophic health consequences, which in the Chasen
study, three of the women having D&Es had catastrophic
health consequences. Inevitably if this law is upheld,
an intact D&E is not available as an option to doctors
when in their judgment based on substantial medical
authority, it's the best option for the woman.
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Inevitably there will be more and more women having D&Es
and suffering catastrophic health consequences in
situations where if intact D&E had been available, those
catastrophic consequences could have been averted.
CHIEF JUSTICE ROBERTS: Thank you,
Ms. Gartner.
MS. GARTNER: Thank you for your
consideration, Your Honor.
CHIEF JUSTICE ROBERTS: General Clement, you
have three minutes remaining.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT
ON BEHALF OF PETITIONER
GENERAL CLEMENT: Mr. Chief Justice, and may
it please the Court:
A few final points. First of all, I don't
think the constitutionality of Congress's act depends on
whether the anatomical landmark is the navel or up to
the head. Congress, as everyone recognizes, had to draw
a line. I think drawing the line at more than halfway
out is a pretty good place to draw the line.
Second, my learned co-counsel is certainly
correct. This is a pre-enforcement challenge, in
response to your question, Justice Kennedy. But the
point is, this is a pre-enforcement spatial challenge,
and if the Court rejects it and allows this statute to
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go into operation, it will not foreclose the possibility
of a future pre-enforcement as applied challenge that
focuses on particular medical conditions. That's not
something, though, that one can reach in this record,
because as the district court in this case found at
147a, there is no specific condition here in which the
D&X procedure is particularly ready met for or otherwise
is medically necessary. Rather, the claims in this case
are that it's always better. That's what some doctors
say. It's a heterodox position, it's not the majority
position, but it's not focussed on specific situations.
The other thing it's not focused on, and
this is in reference to something that Justice Breyer
mentioned, it's not focused on emergencies. Another
thing that the district court noted at page 128a of its
opinion is that the D&E procedure and the D&X procedure,
neither of them are particularly good in dealing with
true medical emergencies where time is of the essence,
because both these procedures require substantial
advance time to do the dilation. And since the D&X
procedure requires more dilation, I actually think in an
emergency, you'd probably end up performing the D&E
procedure if you performed either one, because you'd
need less time for the dilation in an emergency.
The other thing I should point out is that,
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of course, there is this question about what's a
significant risk. And one thing about the lethal
injection at the beginning of the process, the Digoxin
injection, is the other side concedes that the mother
gets to make the choice as to whether or not to do that
procedure. Well, Dr. Carhart does it as a matter of
course after 17 weeks, and I certainly don't think
anyone would suggest that Dr. Carhart is needlessly
inflicting significant risks on his patients after 17
weeks by following that regimen in every case after 17
weeks.
And I think it's worth noting that the legal
regime that respondents would construct is a legal
regime where the woman can decide whether or not to have
that shot, Dr. Carhart can decide it for her and that's
okay, but Congress can't make this judgment. But it's
important to draw a line here, and say that fetal demise
that takes place in utero is one thing. That is
abortion as it has always been understood. But this
procedure, the banned procedure is something different.
This is not about fetal demise in utero. This is
something that is far too close to infanticide for
society to tolerate. Thank you.
CHIEF JUSTICE ROBERTS: Thank you, General
Clement. The case is submitted.
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(Whereupon, at 12:07 p.m., the case in the
above-entitled matter was submitted.)
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