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Kennedy’s As-Applied Maze

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Not surprisingly–given that it’s charged with the task of defending a law that is indefensible under current doctrine–there are many bad elements to Kennedy’s opinion besides its egregious sexism and acceptance of straightforward factual errors. Another weakness is the bizarre illogic of Kennedy’s claim that an “as-applied” challenge to the statute would still be viable. Ginsburg’s dissent identifies the obvious problem:

If there is anything at all redemptive to be said of today’s opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act… But the Court offers no clue on what a “proper” lawsuit might look like. Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman’s health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman “suffer[ing] from medical complications,” ante, at 38, needs access to the medical procedure at once and cannot wait for the judicial process to unfold.

The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that “in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.

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The Court’s allowance only of an “as-applied challenge in a discrete case,” jeopardizes women’s health and places doctors in an untenable position. Even if courts were able to carve-out exceptions through piecemeal litigation for “discrete and well-defined instances,” women whose circumstances have not been anticipated by prior litigation could well be left unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow as-applied challenges are “the proper manner to protect the health of the woman.”

Ginsburg is obviously correct. Clearly, Kennedy cannot be claiming that an “as-applied” challenge would have to start when a doctor is about to begin the surgery and defines a “discrete” circumstance; the judicial process cannot operate that quickly. If the “as-applied” challenge doesn’t mean that, then this litigation would seem as good as any unless the point is to claim that in any situation short of a woman who immediately needs the surgery the suit is insufficiently “well defined” and “discrete.” The correct application of Casey is to tell Congress to come back if it actually obtains serious evidence that the procedure is never necessary, not to put a (nearly impossible) burden of proof on doctors. Waiting for an “as-applied” challenge makes sense in a case where the status quo can be frozen through a stay, but biology makes it completely inappropriate for the abortion context.

Like David Garrow I would like to see doctors perform the procedure when it better protects a woman’s health and go to court to defend their rights. But I can also understand a doctor’s reluctance to do so. First, the doctor would have to hope for a favorable application of a doctrine that is a complete shambles and reflects unremitting hostility towards women and doctors who perform abortions, and can easily be interpreted to make any plausible challenge inadequate. And in addition, doctors may also be aware that a highly politicized Department of Justice will be in charge of enforcing the law. As long as this case remains good law, a chilling effect is inevitable unless doctors are saints.

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