The vagueness of partial-birth abortion bans: deconstruction or destruction?

• Author: Rurka, Maureen L.

1. INTRODUCTION

   In 1997, President Clinton vetoed the most recent incarnation of the Partial-Birth Abortion Ban(1)--a controversial piece of legislation that prescribes criminal penalties such as fines and imprisonment for any physician performing such an abortion.(2) Thirty states have enacted their own versions of the Partial-Birth Abortion Ban, only some of which are currently in effect.(3) Several of these bans have been enjoined pending trial or have been permanently enjoined.(4) In January 2000, the Supreme Court agreed to review the Nebraska statute, which is one of the statutes permanently enjoined by a federal court of appeals.(5) As this issue goes to press, the Court has not yet heard oral arguments in the Nebraska case.

   Opponents of the bans have challenged the constitutionality of the bans on a variety of grounds.(6) Two challenges--closely related to one another--are that the bans are unconstitutionally vague and unconstitutionally overbroad.(7) This comment will focus primarily on these two challenges and demonstrate that none of these bans is unconstitutionally vague or overbroad. Part II will provide a backdrop to the discussion, including a description of the abortion procedure at issue, the nature of the vagueness and overbreadth challenges to the partial-birth abortion bans, and the procedural history of the litigation of the bans.

   Part III will provide a ,detailed analysis of the void-for-vagueness doctrine as applied to other criminal statutes which arguably infringe upon constitutionally protected behavior, as the partial-birth abortion bans allegedly do. The discussion will begin with an analysis of the appropriate standard to be applied when mounting a facial challenge to a state statute. The comment will then discuss the actus reus(8) and mens rea(9) elements of criminal law in relation to vagueness challenges in order to provide a sensible paradigm for the void-for-vagueness doctrine.

   Part IV will discuss the nature of the vagueness challenges to the partial-birth abortion bans. This discussion will include the prevailing opinions in the medical community regarding the specificity of these statutes, and the limited case law on the doctrine as applied to these bans.

   Finally, Part V will present an argument for how the void-for-vagueness doctrine should be applied to the partial-birth abortion bans. The discussion will demonstrate that the doctrine as traditionally applied in similar criminal statutes, when applied in the partial-birth abortion context, leads to the conclusion that none of the bans are unconstitutionally vague or overbroad.

2. THE HISTORICAL BACKDROP

   1. THE PARTIAL-BIRTH ABORTION PROCEDURE AND CONSTITUTIONAL CHALLENGES TO THE BANS

      In order to better understand the nature of this controversy, one must first understand the actual procedure at issue. The term "partial-birth abortion" is commonly understood to mean a certain method of abortion, referred to in the medical community as an "intact dilation and extraction" or "D&X" procedure.(10)

      In the D&X procedure, the physician typically delivers the entire body of the fetus, except the head, before the fetus is aborted.(11) The physician aborts the fetus by evacuating the contents of the cranium, which is typically done by inserting scissors into the base of the fetus' skull, then suctioning out the cranial contents.(12) This procedure collapses the head, thereby facilitating removal of the dead fetus.(13)

      One of the main issues raised by opponents of the partial-birth abortion bans is that the applicable statutes are vague and ambiguous.(14) The opponents contend that the bans do not provide sufficient notice to abortion providers as to which acts will subject the abortion providers to criminal liability.(15) Moreover, a vague statute might not provide sufficient standards for a court to determine whether the accused has, in fact, violated the criminal statute.(16) This uncertainty creates the possibility of arbitrary or discriminatory enforcement of the statute.(17) Thus, the argument goes, these statutes violate the void-for-vagueness doctrine embodied in the due process clauses of the Fifth and Fourteenth Amendments.(18)

      Another underlying concern regarding the alleged vagueness of the bans sheds some light on why opponents who challenge these bans commonly raise the vagueness argument. Vague statutory language can--and often does--create a problem of overbreadth.(19) The overbreadth problem arises when a legislature, having the constitutional authority to regulate a certain activity, drafts a statute which contains language so vague that it not only proscribes the intended conduct, but also proscribes conduct which is constitutionally protected.(20) In the case of the partial-birth abortion bans, opponents contend that the statutory language of the bans is so vague that it proscribes not only the D&X procedure, but also the most commonly performed abortion procedure in the second and third trimester: the dilation and evacuation procedure, or the "D&E."(21) As a result, abortion providers may refuse to perform D&Es out of fear that they will be prosecuted under the partial-birth abortion bans,(22) despite the legislative intent to ban only the D&X procedure. Under the current analysis for abortion statutes set forth by the Supreme Court in Planned Parenthood v. Casey,(23) if the refusal of physicians to perform the traditional D&E is due to the unconstitutional vagueness and overbreadth of these bans, this would surely place an undue burden on a woman's right to obtain an abortion. (24)

   2. THE PROCEDURAL HISTORY OF THE BANS

      Three Federal courts have held that the bans of Illinois, Wisconsin, Virginia, and Georgia are not void for vagueness.(25) Other federal courts have held that the Arkansas, Iowa, Nebraska, Ohio, Louisiana, New Jersey, Florida, Kentucky, West Virginia, Arizona, Michigan, and Missouri have held that partial-birth abortion bans are--or could be--void-for-vagueness.(26) The language of these statutes varies from state to state; however, this does not appear to account for the different results in each of the courts.

      In general, the courts have focused on two elements of the bans in assessing the vagueness claims: (1) the definition of a "partial-birth abortion" as an abortion in which the physician "partially vaginally delivers a living fetus before killing the fetus and completing the delivery,"(27) some variant of which is common to all of the statutes except the Ohio, Kansas, North Dakota, and Missouri statutes,(28) and (2) the existence, or lack thereof, of a scienter requirement in the statutes.(29)

      The bans can be logically divided into four categories. The first category consists of those statutes that contain a scienter requirement and that further define the phrase, "partially vaginally delivers a living fetus before killing the fetus" as: "deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus."(30) Eight statutes contain these elements, as did the federal bill vetoed by President Clinton.(31)

      The second category consists of those statutes which contain a scienter requirement, but do not further define the phrase, "partially vaginally delivers a living fetus." Thirteen statutes fall into this category.(32)

      The third category consists of those statutes that do not contain a scienter requirement, and do not further define the phrase, "partially vaginally delivers a living fetus." Two statutes fall into this category.(33)

      The fourth category consists of the statutes of Louisiana, Virginia, Utah, Ohio, Kansas, North Dakota, and Missouri, which differ to varying degrees from the statutes in the three categories listed above.(34) The bans of Louisiana and Virginia closely resemble bans in the other three categories and will be treated as if they belonged in one of those categories. The ban of Louisiana, lacking a scienter requirement, logically falls into the third category,(35) while the: ban of Virginia, which has a scienter requirement and employs the "substantial portion" language logically falls into the first category.(36) Unless otherwise specified, these bans will be treated as falling within those respective categories. The bans of Ohio, Utah, Kansas, Missouri, and North Dakota, however, are quite different from the others and will be treated separately.

3. THE VOID-FOR-VAGUENESS DOCTRINE

   1. THE BACKGROUND OF THE DOCTRINE

      The constitutional origins of the void-for-vagueness doctrine are somewhat obscure.(37) In a few cases, the Supreme Court has held that the doctrine is embodied in the Sixth Amendment requirement that an accused be "informed of the nature and cause of the accusation."(38) More recently, the Supreme Court has discovered the foundation for the doctrine in the due process clauses of the Fifth and Fourteenth Amendments.(39) It is generally agreed, however, that the purpose of the doctrine is twofold. First, the statute must give a criminal offender fair warning of the proscribed behavior before he can be convicted of the crime.(40) Second, the statute must provide sufficient standards to those applying the statute, in order to avoid arbitrary or discriminatory enforcement.(41)

      Several commentators have noted that Supreme Court jurisprudence on this doctrine seems, at least at first glance, to be highly inconsistent.(42) For example, in United States v. Ragen,(43) the Court upheld a tax evasion statute making it criminal to deduct from taxable income more than a "reasonable allowance for salaries."(44) However, in United States v. L. Cohen Grocery Co.,(45) the Court invalidated a statute that made it criminal for any person to make an "unjust or unreasonable rate in handling any necessaries."(46) Some commentators have suggested a theory that may account for this inconsistency.(47) One commentator, expressing...