Roe's life-or-health exception: self-defense or relative-safety?

• Author: Gilles, Stephen G.

INTRODUCTION I. ROE'S AMBIGUOUS POSTVIABILITY HEALTH EXCEPTION A. The Prima Facie Case for the Self-Defense Interpretation B. The (Complicated) Prima Facie Case for the Relative-Safety Interpretation 1. Cyril Means's Advocacy of the Relative-Safety Test 2. People v. Belous 3. United States v. Vuitch 4. The Relative-Safety Approach as an Interpretation of Roe's Life-or-Health Exception C. The Life-or-Health Exception as an Instance of Studied Ambiguity D. The Myth of Doe v. Bolton E. The Mental-Health Problem F. Is the Self-Defense Approach Unconstitutionally Vague? II. THE RISE OF THE RELATIVE-SAFETY APPROACH A. Colautti v. Franklin B. Thornburgh v. American College of Obstetricians & Gynecologists C. Justice White's Thornburgh Dissent D. Justice O'Connor's Thornburgh Dissent III. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY AND THE "SIGNIFICANT HEALTH RISKS" TEST A. The Third Circuit's Opinion B. The Joint Opinion of Justices O'Connor, Kennedy, and Souter C. The Casey Court's Treatment of the Medical Emergency Provision D. Justice Stevens's Attempt to Lay a Foundation for the Relative-Safety Test E. The Plurality's Failure to Endorse Roe's Compelling-State- Interest Holding F. The Anti-Roe Coalition's Treatment of the Medical Emergency Exception IV. THE LIFE-OR-HEALTH EXCEPTION SINCE CASEY. THE CARHART DECISIONS A. The Return of the Relative-Safety Approach in Stenberg v. Carhart B. Justice Kennedy's Stenberg Dissent C. Justice Thomas's Stenberg Dissent D. A Unanimous Interlude: Ayotte v. Planned Parenthood of Northern New England E. Gonzales v. Carhart: A Hemi-Demi-Semi Victory for the Self-Defense Approach F. Justice Ginsburg's Gonzales Dissent G. The Implications of Gonzales 's Ruling Limiting Facial Challenges CONCLUSION INTRODUCTION

Roe v. Wade (1) famously holds that fetuses are not persons within the meaning of the Fourteenth Amendment prior to birth. (2) Roe also holds, however, that states have a "compelling" interest in fetal life once the fetus is viable, (3) that is, "potentially able to live outside the mother's womb, albeit with artificial aid." (4) Before viability, a woman may obtain an abortion whenever she and her doctor conclude it would be in her best interest. (5) After viability, a state may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." (6) Thus, the general rule that states may protect viable fetal life through abortion bans and regulations is subject to a constitutional life-or-health exception to which state laws must conform.

Much depends, therefore, on what the life-or-health exception means. As formulated in Roe, the exception turns out to be deeply ambiguous in rationale and scope. The exception could be shaped in accordance with self-defense principles, on the theory that the state's interest in viable fetal life should yield to the woman's right to self-preservation. (7) On that understanding, the exception would apply only when a doctor reasonably believes that continued pregnancy would put the mother in grave danger of death or serious injury. Alternatively, the life-or-health exception could stem from a judgment that the state's interest in viable fetal life--while strong enough to require a woman to accept the ordinary burdens of becoming a mother--must yield when, in addition, continued pregnancy would pose greater risks to her life or health than an abortion. (8) On that understanding, the exception would apply whenever, in a doctor's good-faith judgment, the abortion is relatively safer for the mother than pregnancy, because its overall health risks are believed to be smaller.

These competing interpretations of the life-or-health exception (9) have very different practical implications. The self-defense approach would rarely block the application of a ban on postviability abortions because very few pregnancies nowadays pose grave dangers of death or serious health impairment that can only be avoided by abortion. (10) By contrast, the relative-safety approach would apply in the far more frequent situations in which pregnancy and childbirth are believed to pose marginally greater risks to the mother's physical or mental health than a postviability abortion would. (11) Those increased health risks need not be likely to occur, nor need they involve severe health impairment. (12) All that is required is that the increased health risks could lead a doctor, focusing exclusively on what is best for the pregnant woman's health, without regard to the life of the fetus, to recommend that she have an abortion. (13)

The two approaches would also generate different results in the other major setting in which the postviability life-or-health exception applies: state regulation of abortion methods that seeks to maximize the chances that the viable fetus will survive an abortion and receive appropriate neonatal care. (14) Consider, for example, a hypothetical statute requiring that postviability abortions be performed by inducing premature labor--a method that is quite safe for most women, and that (unlike the standard late-term "dilation and evacuation" (D&E) method) often enables viable fetuses to be born alive. (15) Under the self-defense approach, the statute would be constitutional, provided it contained a life-or-health exception for the subset of cases in which inducing labor would be dangerous to the mother. Under the relative-safety approach, the statute would be unconstitutional on its face, because although induced labor is very safe, it is generally accepted that the standard (and fetal-lethal) D&E method has even lower risks, and hence is relatively safer. (16)

The Supreme Court has never definitively embraced either the self-defense or relative-safety interpretation of the life-or-health exception. This Article does not address the central normative question (which approach should the Court adopt), in the conviction that the foundation for an informed debate on that question should be a thorough and rigorous descriptive analysis of the Court's decisions dealing with the life-or-health exception. To the best of my knowledge, no other commentator has undertaken the close reading and in-depth analysis of the Court's cases dealing with the life-or-health exception that this Article presents. (17)

In brief, that analysis demonstrates that the Court has vacillated between--and at times straddled--these two approaches, without ever offering anything resembling a reasoned explanation for its actions. Roe and its companion case, Doe v. Bolton, (18) left the life-or-health exception undefined and ambiguous--thereby enabling pro-life audiences to view it through self-defense eyes and pro-choice audiences to see it with relative-safety ones. (19) In Thornburgh v. American College of Obstetricians & Gynecologists, (20) the Court implicitly endorsed an absolutist version of the relative-safety interpretation. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (21) the Court implicitly rejected Thornburgh and introduced a new (but ambiguous) phrase--"significant health risks" (22)--to describe the circumstances that must be covered by the health exception. In Stenberg v. Carhart, (23) the Court reverted to the relative-safety interpretation (albeit a more moderate version than it had posited in Thornburgh). (24) Most recently, in Gonzales V. Carhart, (25) the Court implicitly endorsed a version of the selfdefense approach (26)--but did so in a haft-hearted manner that sends only a muted signal to lower courts and legislatures.

Although this Article is primarily descriptive, it does make one normative claim: that the Supreme Court's failure to explain the life-or-health exception's rationale and scope is utterly irresponsible. (27) In Casey, the joint opinion of Justices O'Connor, Souter, and Kennedy solemnly declared that "[l]iberty must not be extinguished for want of a line that is clear," (28) and that, unlike legislatures, courts "must justify the lines we draw." (29) When it comes to the life-or-health exception, the Court has neither drawn clear lines nor justified them. The liberal, pro-Roe Justices have tried to have it both ways, intimating that postviability abortions are rare, yet supporting the relative-safety approach that makes them routinely available. The conservative, anti-Roe Justices have angrily objected to the relative-safety approach, yet neglected even to articulate, much less make the case for, the obvious self-defense alternative. The one point on which they all apparently agree is that the less said about Roe's life-or-health exception, the better.

This abdication of the Court's basic responsibility to say what the law is--particularly when the Court itself has made that law--has received little attention or criticism. How has the Court gotten away with it? In part, I surmise, because the Court's failure to decide has been almost as good as outright victory from the pro-choice standpoint favored by elite, professional, and media opinion. The law in action tilts decisively toward the relative-safety interpretation. Twenty-one of the thirty-six states with a postviability ban in force simply track the language of Roe's life-or-health exception; (30) the other fifteen use more restrictive language suggesting a self-defense interpretation. (31) (Fourteen states have no prohibition on postviability abortions in force, either because they have no postviability statutes, or because their postviability statutes contains no health exceptions, and thus are plainly unconstitutional under Roe.) (32) Absent an unambiguous endorsement of the self-defense approach by the Supreme Court, the lower federal courts are likely to interpret all these statutes in accordance with the relative-safety interpretation. I base this prediction on three considerations: (1) the established practice of interpreting statutes, where reasonably...