US Supreme Court: 05-380

8/14/2019 US Supreme Court: 05-380

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IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

ALBERTO R. GONZALES,

ATTORNEY GENERAL,

Petitioner

:

:

:

v. : No. 05-380

LEROY CARHART, ET AL. :

- - - - - - - - - - - - - - - - - x

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 10:05 a.m.

APPEARANCES:

GEN. PAUL D. CLEMENT, ESQ., Solicitor General,

Department of Justice, Washington, D.C.; on behalf of

the Petitioner.

PRISCILLA SMITH, ESQ., New York, N.Y.; on behalf of the

Respondent.

1Alderson Reporting Company



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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

PRISCILLA SMITH, ESQ.

On behalf of the Respondent 28

REBUTTAL ARGUMENT OF

GEN. PAUL D. CLEMENT, ESQ.

On behalf of the Petitioner 53




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P R O C E E D I N G S

(10:05 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

first this morning in case 05-380, Gonzales v. Carhart.

General Clement.

ORAL ARGUMENT OF GEN. PAUL D. CLEMENT

ON BEHALF OF PETITIONER

GENERAL CLEMENT: Mr. Chief Justice, and may

it please the Court:

Congress held six hearings over four

different Congresses and heard from dozens of witnesses

in determining that partial-birth abortions are never

medically necessary, pose health risks, and should be

banned. Under familiar principles of deference to

congressional factfinding, those determinations should

be upheld as long as they represent reasonable

inferences based on substantial evidence in the

congressional record.

That standard is amply satisfied here. The

evidence before Congress was clear that partial-birth

abortions were never medically necessary, and that safe

alternatives were always available such that no woman

would be prevented from terminating her pregnancy. As a

result, Congress was entitled to make a judgment in

furthering its legitimate interests that they were going






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small minority of second trimester abortions. And so I

do think --

JUSTICE GINSBURG: Even though we are told

by some of the medical briefs that the procedures are

basically the same, they start out in the same way and

that the difference -- the differences are not large in

particular cases.

GENERAL CLEMENT: Well, Justice Ginsburg,

let me make a couple of points in response to that. I

think -- taken at the broader level first, I think there

is one very important difference between these two

procedures that led Congress to ban one and allow the

other to stand. And that is whether fetal demise takes

place in utero, which is, of course, the hallmark of all

abortions, or whether fetal demise, the lethal act takes

place when the fetus is more than halfway out of the

mother.

Now, as to their suggestion, I think most

particularly by Respondents in the second case, that

there really is no meaningful difference between those

two procedures. And with respect, I just don't think

the record supports that. If you look at the record in

this case, it's very clear in the district court opinion

that you have some doctors, and examples would be

Plaintiff's expert, Dr. Creinin, or one of the Nebraska




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Plaintiffs, Dr. Vibhakar. They go in, in each and every

case, and try to perform a dismemberment, or D&E,

procedure.

And because they're trying to perform the

D&E procedure, they need to dilate the cervix only

modestly. And so Dr. Creinin, for example, his

testimony is he only dilates the cervix two centimeters

or two and a half centimeters.

Now, in contrast, you have other doctors,

and here the examples I would point to are two of the

Plaintiff's experts, Dr. Chasen and Dr. Frederickson,

they, in every single case, set out to perform the D&X

procedure. And that has material differences. For

example, the dilation regimen that they use. And so

Dr. Frederickson, for example, uses multiple sets of

laminaria to dilate the cervix, and she gets a much

greater degree of dilation, 5 to 6 centimeters of

dilation.

And of course, not only do they set out to

perform different procedures, but they, in fact, perform

different procedures. So the evidence here again

reflects that Dr. Vibhakar, for example, in 100 percent

of the cases, ends up performing a dismemberment

procedure, or a D&E procedure. For Dr. Creinin, it's 99

percent.




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Now, by contrast, Dr. Chasen and

Dr. Frederickson, when they set out to perform a D&X

procedure, they are successful in their objective less

often. There are different numbers for different

doctors, but it seems that, at most, they can achieve

their objective about a third of the time.

JUSTICE KENNEDY: Well, those doctors

testified in the congressional hearings or in the Eighth

Circuit or Ninth Circuit or the Second Circuit? There

are so many doctors here. Which are the two that you're

referring to that do not dilate the cervix fully? Did

they testify in any of the district court cases?

GENERAL CLEMENT: They did, Justice Kennedy,

and in particular, Dr. Creinin is an expert. I think

his deposition was taken, or his testimony was taken

principally in the California case, but it was

introduced in all three cases as part of the evidentiary

record. Dr. Vibhakar is one of the Plaintiffs in this

particular case. And Dr. Chasen and Dr. Frederickson

would also -- their testimony was in the record, I

think, in all three cases.

JUSTICE BREYER: Just from my going through

this record, I compare it with Stenhart, with what's in

Congress. We have two cases here. And it's a fair

conclusion that there are, in each case, before Congress




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and in here, there are some doctors who think this is

safe and some doctors who think it isn't safe.

And if you look at the -- sort of by

counting, by numbers, I guess if you look by lines of

testimony or by different doctors, interestingly enough,

it seems to me there are more doctors in these two cases

and in front of Congress who said it is not safe than

there were when we considered the other case. And there

are fewer doctors who say it is safe even with the other

case. So I don't know if you're supposed to count

doctors or what.

My question would be, if this -- do we owe

more deference to a congressional finding or to Congress

than we owe to a State legislature? What is -- I mean,

I take it a State legislature is democratically elected,

and don't we owe similar deference to both?

GENERAL CLEMENT: Well, Justice Breyer, I

think you certainly owe deference to both. I think --

JUSTICE BREYER: Well, if we owe deference

to both, and I would have thought that we did, then I

think in the Nebraska case, despite the deference that

was owed, the Court came to the conclusion that the

statute of Nebraska was unconstitutional because it

lacked an exception for the health of the mother,

something that came from preceding cases. So if giving




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deference to Nebraska, we reach that conclusion there,

and if the deference that is owed is the same, and if

the evidence is about the same on both sides, how can we

reach a different conclusion here?

GENERAL CLEMENT: Well, Justice Breyer, I

mean, obviously I'm at a certain deficit to you in

discussing what this Court held in the Stenberg opinion,

which you wrote. But my reading of that opinion is that

this Court did not focus on what was before the Nebraska

legislature. But this Court focused on what the

district court found. And in particular, in the

critical part of the opinion, which would be Section

2(A) of the opinion, as I read the opinion, what this

Court did is it confronted Nebraska's argument that the

D&X procedure was not, in fact, safer.

And the first thing this Court did is said,

well, that argument faces quite a burden, because the

district court made a contrary finding. And then this

Court in 2(A)(1) of the opinion referenced that finding,

and four different times cited the district court

record, and then so on and so forth. It then noted the

various eight arguments were made by the State in its

amici to the contrary. And as I read the opinion, it

basically said the latter, the objections don't

outweigh the former, the findings.




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Now, I think if you compare the record

before the courts and before Congress, compare that to

what was before the district court in Stenberg, I think

there is a much more robust factual record here. If you

look at the Stenberg case --

JUSTICE STEVENS: General Clement, are not

some of the findings by Congress clearly erroneous? For

example, there is a statement that no current medical

schools provide instruction in the procedure. Now

that's clearly wrong, isn't it?

GENERAL CLEMENT: Well, I mean, specifically

what Congress found in that finding was that none of

them provided it as part of a curriculum. And I think

what the record here clearly reflects -- you know, I

don't know that the idea of a curriculum -- I don't know

exactly what Congress had in mind. But clearly, is a

matter of sort of what you teach residents --

JUSTICE STEVENS: Do you think that finding

is correct?

GENERAL CLEMENT: I don't know if it's

correct, based on the curriculum.

JUSTICE STEVENS: Supposing there was a lot

of evidence introduced in the district court that there

were schools like Yale and New York University that did

include this as part of a curriculum, could the district

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court disregard that finding and make a contrary

finding?

GENERAL CLEMENT: I think if the evidence in

the district court were overwhelmingly to the contrary,

I think that the district court could effectively

undermine that one finding. I don't think in this case

anything turned --

JUSTICE STEVENS: Well, on other findings,

is there a different standard of review of what the

district court found as opposed to what Congress found?

GENERAL CLEMENT: Well, Justice Stevens, I

would answer you this way. You might first want to

isolate those situations where, if the district court

was addressing something, an issue that just wasn't

before Congress at all, but it's somehow relevant, and

makes factual findings, I suppose the district court is

entitled to the normal kind of deference on review.

But I think if you have situations, which

you have in this case, where the district court heard

some of the same witnesses who testified before Congress

and before the district court, and the district court

makes a different credibility finding than the Congress

made, I don't think that's a basis for the district

court to be able to overcome the contrary findings of

Congress.

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JUSTICE STEVENS: Well, I don't understand

Congress to have made credibility findings. As I read

the -- I read the whole finding. There were six or

seven pages of findings, and I don't find a single

reference in those findings to the performance of an

abortion on a nonviable fetus. All of the language in

the findings seem to be referring to viable fetuses just

inches away from becoming a person. And I don't think

you can even find the word fetus in those findings. The

findings as opposed to the text of the statute.

GENERAL CLEMENT: Sure, Justice Stevens, I

think I need to clarify an important point there, which

is to say, the statute didn't focus on viable versus

nonviable, because it applies to both sides of the

viability line.

JUSTICE STEVENS: I'm talking about the

findings. Is there a single word in the findings that

refers to a viable fetus? It maybe refers to a

nonviable fetus.

GENERAL CLEMENT: I don't think there is,

Justice Stevens, but I wouldn't find that at all

remarkable in a statute that applies and bans certain

procedures without regard to whether the procedure is

applied to a viable or nonviable fetus and when

Congress does make specific findings that the procedure

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it's banning would have the effect of preventing a

lethal act on a fetus just inches from being born. It's

not --

JUSTICE STEVENS: May I interrupt?

GENERAL CLEMENT: Sure.

JUSTICE STEVENS: It's not preventing the

lethal act, it is requiring that the lethal act be

performed prior to any part of the delivery, because

there is no doubt there will be a lethal act. The only

issue is when it may be performed.

GENERAL CLEMENT: The issue is whether --

JUSTICE STEVENS: Yes.

GENERAL CLEMENT: Yes. Because the issue is

to whether it's going to be performed in utero, or when the

child is more than halfway outside the womb, and that of

course --

JUSTICE STEVENS: Whether the fetus is more

than halfway out, and some of these fetuses I understand

in the procedure, are only four or five inches long.

They are very different from fully formed babies.

GENERAL CLEMENT: Justice Stevens, again,

you're right.

JUSTICE SCALIA: When it's halfway out, I

guess you can call it either a child or a fetus. It's

sort of half and half isn't it?

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GENERAL CLEMENT: I think you could use

either terminology, Justice Scalia. My point is,

nothing turns on the terminology. I mean, the

terminology that Congress chose to use is a living

fetus. I think the point, though, is that when fetal

demise is induced in utero, whatever else you think

about that procedure that is classically an abortion, as

it has been always understood. But when fetal demise is

induced when the, when the living fetus is over halfway

outside of the womb, then I think Congress --

JUSTICE STEVENS: Wouldn't the fetus be -- I

think it suffer a demise in seconds anyway.

GENERAL CLEMENT: Well it may be seconds, it

may be hours; it depends on -- because even a pre --

JUSTICE STEVENS: Do you not agree that it

has no chance of survival, in most cases?

GENERAL CLEMENT: If we are talking about

previability then by definition chances are it won't

survive.

JUSTICE STEVENS: Yes, that's right.

GENERAL CLEMENT: But again, I don't think

that, you know, that anything in this act --

JUSTICE STEVENS: Congress has made the

judgment that it is far preferable to ensure that fetal

demise takes place before any delivery begins. That's

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the big issue.

GENERAL CLEMENT: Well, I'm not sure if it's

whether, that's a fair, that's a fair summary. I mean,

you know, the line isn't that fetal demise has to be

done before any delivery begins, but the basic point of

this statute is to draw a bright line between a

procedure that induces fetal demise in utero and one

where the lethal act occurs when the child or the fetus,

whichever you want to call it, is more than halfway

outside of the mother's womb.

JUSTICE SCALIA: Would it, would it be

lawful or would it be infanticide to deliver the fetus

entirely and just let it expire without any attempt to

keep it alive?

GENERAL CLEMENT: Well, in the

postviability context it would clearly be, it would

clearly be infanticide. I think in the previability

context, if you have a complete delivery but the child

isn't going to survive, I don't think it would be

infanticide to necessarily let the child expire --

JUSTICE GINSBURG: Mr. --

GENERAL CLEMENT: But I do think by contrast

if somebody tried to, with the fetus, you know,

perfectly alive and in the hours that it might have to

live, if somebody came in and ripped its head open, I

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indifferent to whether in that case fetal demise takes

place in utero or outside the mother's womb. The one is

abortion, the other is murder.

And I think that just recognizes that even

in the postviability context you have a very important

line which is a spatial line, and that line is basically

in womb, outside of womb, and what Congress tried to do

in this statute is to draw that line and differentiate

between one procedure where fetal demise takes place in

utero --

JUSTICE GINSBURG: But if this case were

limited to postviability abortions it would be a

different matter. But isn't it so that the vast

majority of these abortions are going to be performed

previability?

GENERAL CLEMENT: I think that's probably

right, Justice Ginsburg, but I think the point I would

make is that Congress has an interest in maintaining the

spatial line between infanticide and abortion, even with

respect to previability fetuses and that's true for at

least two reasons.

JUSTICE BREYER: If -- I see what you're

driving at in terms of the procedure. We are focusing

on a universe where the fetus is not going to survive no

matter what, right?

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GENERAL CLEMENT: Right.

JUSTICE BREYER: Okay. So we are not

talking about anyone being born and living. They are

not going to.

GENERAL CLEMENT: Well, with the caveat that

the statute does apply both --

JUSTICE BREYER: And that's the area of

focus.

GENERAL CLEMENT: Right.

JUSTICE BREYER: Now, Congress has said that --

the doctor, you can achieve that result through method A,

but not through method B, and you're saying Congress had

good reason for doing that. I take it Congress also

agrees that if method B, which they don't want, were to

be necessary for the safety or health of the mother, the

Constitution would require it being done. I didn't see

anything here about Congress disagreeing with that.

GENERAL CLEMENT: Oh, I think that's right,

Justice Breyer. I think this, Congress --

JUSTICE BREYER: All right. If that's

right --

GENERAL CLEMENT: -- took this Court's

Stenberg's decision as a given --

JUSTICE BREYER: Right. Fine. Okay. They

make a finding that although we don't disagree with

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that, we don't think it's ever necessary for the health

or safety of the mother. That's where we are. Now as I

look at the record, I see many, many, many doctors

telling Congress and everybody else that it is

necessary, and safe. And I see other doctors telling

Congress primarily, but in court, too, that it isn't

necessary, ever for safety.

And so if medical opinion is divided, and

I'm not advocating what I'm about to say, I just want to

know your reaction. If medical opinion is divided, why

wouldn't it be up to this Court or could this Court say

this use of this procedure, we enjoin the statute to

permit its use but only where appropriate medical

opinion finds it necessary for the safety or health of

the mother?

Now, if Congress is right, there will be no

such case so it's no problem. But if Congress is wrong,

then the doctor will be able to perform the procedure

and Congress couldn't object to that because the

Congress isn't worried about, I mean Congress, then

Congress was wrong. They agreed that we had a health or

safety exception.

GENERAL CLEMENT: With respect, Justice

Breyer, here is the problem with that way of approaching

the statute. That might be a permissible way of

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approaching it if what the evidence on the other side

was, that well you know there are cause-specific reasons

why you need this procedure. There are particular

conditions where you need this procedure. But that's

not the evidence on the other side. What their doctors

say, the doctors who perform this D&X procedure, the

Dr. Chasens, the Dr. Fredericksons, what they will tell

you is that every single case the D&X procedure is

better and safer and they want to do it. And so it

doesn't make, I mean Congress can't pass a statute that

bans procedure A, and that ban doesn't apply any time a

doctor prefers procedure A.

JUSTICE BREYER: No. It just wouldn't be a

question of the doctor's preference. You would have to

refer back to prior cases, and what the prior cases talk

about including Stenberg is not that that the doctor

simply has a preference, but rather that there has to be

a significant body of medical opinion that says that

this is safer procedure and necessary for the safety of

the mother.

Now, where that's true, the Court has

previously said that the Constitution protects the

right. And I don't see anything in what Congress says

that wants to change that law. They simply have a

different view of the facts.

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GENERAL CLEMENT: Well, they do have a

different view of the facts. And I guess the question

JUSTICE BREYER: So if they have a different

view of the facts, why can't we leave it up to whatever

facts develop? If there is an appropriate body of

medical opinion that does in fact believe this is

necessary for the health of the mother, so be it, and

the abortion could be performed and the injunction would

say that.

GENERAL CLEMENT: Well, I think --

JUSTICE BREYER: And otherwise not.

GENERAL CLEMENT: If this Court rejects the

facial challenge to this statute it is still going to be

open for litigants in the future to try to identify

specific conditions where this procedure is the safer

alternative.

JUSTICE KENNEDY: Can you tell me a

hypothetical instance in which where an as applied

challenge could be brought if we sustain the statutue

on its face? The procedure has to take place within 24,

48, 72 hours. How would as applied challenge take place?

You know, I read all the doctors' testimony

in this case, hundreds of pages, and I'm familiar with

the area generally. But it takes a while to get up to




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speed. I don't know if you could just go to a district

judge and say I need an order, the judge would take --

would have to take many hours to understand that.

GENERAL CLEMENT: Justice Kennedy, what I

think I have in mind principally would be a

preenforcement challenge that was an as applied

challenge. And what I have in mind, you know that's

something that there is in other areas of the law,

Steffl against Thompson is an example. But what you

would have in mind is a doctor who had standing under

this Court's abortion jurisprudence would come in and

say, look, in my practice I've seen that this procedure

would be particularly useful in dealing with

preeclampsia or placental previa or some condition.

JUSTICE KENNEDY: Why isn't that already in

the record in the Ninth Circuit, in the Second Circuit

and in the Eighth Circuit, in the district courts,

proceedings in those circuits?

GENERAL CLEMENT: Well, there is an effort

to make that showing. I don't think that it's been a

successful effort to make that showing. In fact I think

if you look at the findings of the district courts in

these cases, two of the three district courts found that

there was no particular condition where the D&X abortion

was medically necessary or had marginal safe benefits --

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safety benefits. In this case, the Nebraska case, the

district court identified only two conditions,

preeclampsia combined with maternal cancer, and placenta

previa. And as to those particular findings as we point

out in our reply brief, there are problems with each of

those findings.

JUSTICE KENNEDY: General Clement, I'm just

thinking, trying to imagine how an as applied challenge

would be really much different from what we have seen

already.

GENERAL CLEMENT: Well, I don't think, I

mean, they've challenged everything including every

application of the statute and they've tried to pick off

some particular conditions. What I'm imagining is in

the future you might have, you might have additional

evidence, you might have additional experience with

doctors, and they might come in and target their

challenge to particular conditions and try to say --

JUSTICE GINSBURG: But General -- General

Clement, conditions don't show up in the abstract.

Wouldn't it often be the case that it depends on the

vulnerability of the particular patient and you couldn't

bring a preenforcement challenge as to that. Maybe

it's a question of hemorrhaging, that -- it's a

combination of what the condition is and the

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vulnerability of the particular patient and I don't see

how that could be tested in advance.

GENERAL CLEMENT: Well, Justice Ginsburg my

understanding is even when you talk about an

idiosyncratic condition, I mean, the doctors who perform

these abortions perform, you know, hundreds of them a

year and they can identify those conditions and they

have names for those conditions and I think it would be

amenable to bringing a more as applied challenge.

CHIEF JUSTICE ROBERTS: General, do you

understand the scope of this statute to be different

than the scope of the statute at issue in Stenberg,

focusing in particular on the deliberate and intentional

language?

GENERAL CLEMENT: I certainly do, Mr. Chief

Justice, and I think that this statute, unlike the

Nebraska statute, clearly uses an anatomical landmark

approach that is based in the text of the statute and

clearly distinguishes between the D&E procedure on the

one hand and the D&X on the other hand.

JUSTICE SOUTER: But isn't it quite

independent of the anatomical approach that the health

exception is denied? I mean that's an -- that does not

depend on the anatomical approach. The anatomical

approach may well be an answer at the facial

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apparently contrary judgment.

Which of the three do we take?

GENERAL CLEMENT: Well, we would urge you to

take any one of them.

JUSTICE SOUTER: Take all three.

(Laughter.)

JUDGE SOUTER: No, but seriously --

GENERAL CLEMENT: But in fairness, I mean,

you know, we have an obligation to defend the statute.

So our first, you know, our first effort would be to say

we distinguish the --

JUSTICE SOUTER: Okay, but the problem, I

guess -- focus the problem this way. The, the Stenberg

opinion talks about substantial medical authority as

triggering this requirement for a statutory element.

That problem is not focused simply by saying Congress

made some findings and the district court made other

findings and Congress should prevail.

The fact is the substantial medical judgment

finding I would suppose is satisfied by the, by the

record in the district courts in these cases. This is

not one doctor's idiosyncratic judgment and a court can

reasonably find, it seems to me, that there is

substantial medical judgment. If we are going to defer,

as you say we should defer to Congress, haven't we got

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to overrule that statement?

GENERAL CLEMENT: I don't think so, Justice

Souter. Let me just -- I'd like to save some time for

rebuttal, but let me try to answer it this way, which is

our way of looking at Stenberg is Stenberg really

doesn't address what you do when there are congressional

findings. And there is some tension between Stenberg

and Turner on this, because Stenberg seems to suggest,

well, when there is a doubt, the kind of doubt that

would normally get you past a summary judgment, you

defer to the doctors, and Turner seems to suggest when

you have a doubt, conflicting evidence, the kind of

doubt that might get you past summary judgment normally,

you defer to Congress. And it has to be one or the

other. It can't go both ways, can't go opposite ways,

and we would say resolve that tension, but when there is

congressional findings, something that you obviously

didn't have to confront in Stenberg, defer to the

congressional approach.

If Stenberg means something contrary, that

even in the face of congressional findings that you have

to defer to a minority opinion of doctors and, you know,

kind of invert what would normally be the way of

approaching it, we think then that would be inconsistent

with this Court's decision in Casey, among others, and

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you should revisit Stenberg to that effect, to that

extent.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, General.

Miss Smith.

ORAL ARGUMENT OF PRISCILLA SMITH

ON BEHALF OF RESPONDENT

MS. SMITH: Mr. Chief Justice and may it

please the Court:

The Government throughout this case has

quarreled with the plaintiff's statement of Stenberg and

Congress quarreled clearly with the district court

findings, but their real argument here is with this

Court in the Court's ruling in Stenberg, particularly in

light of the congressional findings that are, that are

frankly unsupported by either the congressional record

or the additional evidence presented to the district

courts. The only course here that preserves the

independence of the judiciary, that exemplifies the

importance of stare decisis, not to mention the only

course that will protect women from needless risks of

uterine perforation, infertility, sepsis and hemorrhage,

is to hold this act unconstitutional.

JUSTICE KENNEDY: Can you tell me -- I

didn't find it in the materials. Maybe the statistics

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aren't available. In the cases where intact D&E or D&X

are performed in the period I guess, what, 16 through

20, 21st, 22nd weeks, in how many of those instances, do

you have any idea, in how many of those instances is

there serious health risk to the mother that requires

the procedure as opposed to simply being an elective

procedure? Are there any statistics on that?

MS. SMITH: No. In terms of the underlying

medical conditions there really aren't, Your Honor, and

it varies dramatically according to the practice of the

physician. If a physician is in a high risk OBGYN

practice, he or she is much more likely to encounter

patients with serious underlying medical conditions such

as the ones that the doctors have testified about in

this case, the liver disease, kidney disease, heart,

cardiovascular disease, cancer of the placenta, bleeding

placenta previa, all of these issues and underlying

conditions that makes the impact and the risks that are

reduced by the intact D&E particularly important.

CHIEF JUSTICE ROBERTS: We have no evidence

either in the record before the Court or Congress as to

how often that situation arises?

MS. SMITH: No, we don't, Your Honor. We

know that in some practices it's quite frequent, in some

practices it's not as frequent because those are mostly

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hospital-based practices. But on the other hand,

there's extensive evidence in this case, much more

evidence frankly, Your Honor, Justice Breyer, than there

was in the Stenberg case, of the, of the --

JUSTICE KENNEDY: I have just one other

question that, it's generally related to the first.

If there is substantial evidence that other procedures

or alternate procedures are available, alternate to D&X,

alternate to intact D&E, is your response that, although

they're available as a matter of science, as a matter of,

of medical expertise, they are not available because

hospitals don't allow the patients to be admitted? I

was going to ask that same question to the Government,

because there is some indication in the record that

certain hospitals just don't admit patients for this

purpose, which is -- goes back to my earlier question.

I was wondering if that's because it's surely elective.

MS. SMITH: Because it's what sir?

JUSTICE KENNEDY: Because it's purely

elective and not medically necessary.

MS. SMITH: No, Your Honor. Hospitals,

many, many hospitals throughout the United States refuse

to provide any abortions whatsoever as just a blanket

rule. There are some that will provide abortions in

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obtaining the abortion because of a certain medical

condition. Then there are women who are obtaining an

abortion because they have chosen that that's the best

course for them who also have underlying medical

conditions. So if you're a woman who has chosen to

obtain an abortion and you have an underlying cardiac

disease, for example -- we had a case like this in

Louisiana. The hospital refused to do the abortion

because her chance of dying from the underlying medical

condition was not over 50 percent. So the availability

of hospital services is somewhat unrelated to this case,

but it is, it is quite limited in some circumstances.

JUSTICE KENNEDY: Well, it might be related

in the sense that the Government's argument that there

are alternate mechanisms is not a practical alternative.

I was going to ask the Government about that. On the

other hand, the fact that any number of hospitals don't

allow the procedure is also indicated, indication that

there is a medical opinion against it.

MS. SMITH: No, not at all, Your Honor. The

medical opinion in those cases is against abortion

whatsoever and a refusal to use one's facilities to

provide any abortion --

JUSTICE BREYER: So in terms of --

MS. SMITH: -- of any kind, not about any

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particular procedure.

I'm sorry, Justice Breyer.

JUSTICE BREYER: I didn't like your

characterization and the Government's of the state of

the record. I asked my law clerk basically to go look

up every statement that was made in four forums. The

first was the first Stenberg case. Second was Congress.

Third is this, one of the cases here; and the fourth is

the other case here. Now, my own impression of that is

if you're talking about the medical need for such a

case, that is for intact D&E, that there is a risk

attached if you don't use it in some instances. The

fewest number of statements for that proposition was in

the first Stenberg.

MS. SMITH: Yes.

JUSTICE BREYER: More statements in

Congress, more statements that you -- doctors who say, I

need this procedure for safety.

MS. SMITH: There are many more in this --

JUSTICE BREYER: There are many more in this

case than there were -- in these two cases there are

many more than there were in Congress and in Congress

there are many more than they were in first Stenberg.

MS. SMITH: That's right.

JUSTICE BREYER: Now, if we look to the

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other side of the coin, the doctors who say, no, it

isn't safe, there I'd have to say there are probably

many more in Congress than there are -- who say it isn't

safe, there are probably many more in Congress; and then

there are some in these cases, too; and there are hardly

any in Stenberg, not too many.

MS. SMITH: Well, there is --

JUSTICE BREYER: It was against you, in

other words.

MS. SMITH: There are many letters written

to Congress that are in the record. In terms of live

witnesses, Your Honor --

JUSTICE BREYER: Yes.

MS. SMITH: -- there were in Congress eight

live witnesses that testified.

JUSTICE BREYER: All right, so I'm left with

a record where I guess you have a subjective

characterization that there is at least as much evidence

in these cases supporting you and as much in Congress

supporting you as there was in the first Stenberg case.

But Congress made this finding, so what am I to do with

the finding?

MS. SMITH: Right. Well, the important

point, Your Honor, is that even if the Court applied the

highest level of deference under Turner, the findings

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would be rejected and must be rejected, as all three

district courts held, because they're simply

unreasonable even under a Turner standard.

JUSTICE GINSBURG: Ms. Smith, was the

statement of the American College of Obstetricians and

Gynecologists before Congress?

MS. SMITH: Yes, Your Honor, it was, as was

the brief that was filed, the amicus brief that was

filed in this case in Stenberg was before Congress, and

also testimony from numerous physicians in the form of

letter. In terms of live witnesses, there were simply

not that many.

CHIEF JUSTICE ROBERTS: We'll give you an

extra 30 seconds. Proceed.

MS. SMITH: That's fine, Your Honor. I've

lost track of my train of thought, though, I think.

I think what I was saying was there were

eight witnesses who testified live.

JUSTICE BREYER: My question basically I

think you might have been going after is, I was saying

that I agreed with you in that there is more evidence

supporting your side in these cases than there was

before Congress, than there was in first Stenberg.

MS. SMITH: Yes.

JUSTICE BREYER: But still there was a

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finding in Congress and there wasn't a finding in the

Nebraska legislature, and so does that fact of the

finding being in Congress and not in the Nebraska

legislature -- what kind of legal difference does that

make?

MS. SMITH: And Your Honor, what I would say

in this case, it makes none. While it's an extremely

interesting academic question about the level of

deference that should be applied in this kind of

circumstance, here it really is academic because under,

even under the Turner standard, if applied in a way that

Turner actually applied deference, to carefully review

the findings in light of the evidence in Congress and

again in light of the evidence in the district court --

JUSTICE STEVENS: May I ask you this

question about what you think we should do. If I

thought the evidence did support the conclusion that

it's never medically necessary, it merely -- the

evidence merely supports the proposition that a doctor

has to be a lot more careful if he goes one way rather

than the other because there are more risks involved in

one procedure rather than the other, would that be

sufficient to support the -- I can see the argument that

the intact delivery may have less risk of complications

and so forth without it not necessarily being absolutely

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necessary.

MS. SMITH: Well, I think there is, there's

been some confusion about the word "necessary" and it's

been used sometimes to talk about whether there are

other procedures that could be used, as opposed to the

determination that it is the safest procedure that

reduces significantly the risk of very serious

complications, not the risks of minor complications.

CHIEF JUSTICE ROBERTS: I guess that gets

back to the point earlier. I mean, do you agree with

the discussion earlier that this act is not going to

prevent abortions?

MS. SMITH: No, not at all, Your Honor. I

-- the issue of the scope and breadth of the law is -- I

think the evidence clearly shows that this is a very

broad law that applies to D&E abortions and, contrary to

what the Solicitor General said about the intent of

abortions, abortion providers like Dr. Vibhakar and

others, they actually, their intent is always to remove

the fetus as intact as possible, and the district courts

have recognized that as an intent that's covered under

the terms of the act.

CHIEF JUSTICE ROBERTS: What degree of

marginal impact on safety do you think is necessary to

override the State's interest? I mean, if you have

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complications under the D&E procedure in say 10 percent

of the cases, complications under D&X in 9.99 percent of

the cases, is that marginal benefit in safety enough to

override the State's articulated interest?

MS. SMITH: I don't believe a marginal

benefit in safety is enough and I don't believe that's

what we have here. The testimony from over, from at

least 11 board-certified OBGYNs, from the American

College of Obstetricians and Gynecologists, is that the

reduction in risk is significant and that it reduces the

risk of serious complications, such as uterine

perforation, which can lead to hysterectomy and

infertility.

CHIEF JUSTICE ROBERTS: But I thought your

submission earlier was that we don't have any record

evidence about how often the complications arise, so

it's hard to get a handle on exactly what the difference

is in terms of safety under your submission.

MS. SMITH: We don't have a quantification

of the safety. What we what we have is the clinical

experience of major leading physicians in the field,

who've testified that they've used both procedures. In

fact, many of them have testified that they perforated

uteruses in non-intact D&Es and they've never perforated

a uterus in an intact D&E. And that in fact is borne

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Justice Ginsburg's question. If I understood you

correctly a moment ago, and I think this is in your

briefs too, you said that the definitional problem is

that doctors always set out to do an intact procedure if

they can, because it involves less risk to the mother

from, from acts performed inside. And if that's the

case, then it would be, I guess in the real world, very

difficult for Congress to define a difference between

D&E and D&X, because the intention is always, as you

understand it, to have an intact result.

Your brother on the other side, the

Solicitor General says there certainly is testimony to

the effect that that is not so. That doctors who intend

to perform a D&E simply intend at the beginning to have

a lesser degree of dilation which will force them to do

the D&E and not have a totally intact procedure.

Would you comment on what I think is the

factual difference between you and the Solicitor General

there?

MS. SMITH: Yes, Your Honor. The -- the

problem with the law is that because it's not limited to

intact, it would in fact cover the procedures that are

performed by physicians who intend to perform a

procedure as intact as possible but simply don't expect

that.

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JUSTICE SOUTER: I understand that.

MS. SMITH: Yes.

JUSTICE SOUTER: But could you start simply

with the factual predicate for your argument and his

argument. You seem to be starting from, if I understand

the two of you correctly, you seem to be starting from

basically different factual assumptions. Could you,

could you start by commenting on that?

MS. SMITH: Yes. The doctors perform the

same dilation protocols whether they are going to

perform a D&E or an intact D&E, and that's true for

Dr. Chasen and Dr. Westhoff, who performed both intact

and non-intact procedures.

CHIEF JUSTICE ROBERTS: I thought the

evidence was that you're looking for a different degree

of dilation if you're intending to perform D&E than if

-- and you're looking for a greater degree if you're

intending to perform a D&X.

MS. SMITH: It doesn't play out that way.

Doctors do have different dilation protocols, but they

are often looking for as much dilation as they can get.

On the other hand --

CHIEF JUSTICE ROBERTS: Is your submission

that there aren't different dilation protocols if you're

intending a D&E and if you're intending a D&X, they're

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the same?

MS. SMITH: It varies by doctor. For

example, Dr. Carhart uses the same dilation protocol

whether he's going to do an intact or a non-intact.

Other doctors might try to do more dilation. And the

doctors, importantly, can't control the amount of

dilation they get, so a decision happens.

JUSTICE SOUTER: Well, they may not be able

to control it in an absolute sense, but can't they go

about it in a way that would tend to produce less rather

than more dilation?

MS. SMITH: Not --

JUSTICE SOUTER: It can't guarantee results,

but couldn't they at least start with a, I don't know

how you put it, a procedure that would be likely to

produce less rather than more, and hence come within the

safe harbor, if you will, of the statute?

MS. SMITH: Well, they are always looking

for a minimal amount of dilation. Then people who chose

to do another day of dilation, for example, that could

add additional dilation. But for the first day of

dilation, no, Your Honor. They don't seek more or less

over one day. They might do a second day or --

JUSTICE SOUTER: Well, you say they don't,

but my question is, can they? And the record may not

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show this. I'm not asking you to answer the impossible,

but do we have evidence that would indicate that they

can or that they can't?

MS. SMITH: Not in the first day of

dilation, no. They can't control how much dilation is

going to occur. They need a minimal amount and they are

not going to shoot for less than that.

JUSTICE SOUTER: Can you tell us where to

look in the record for the evidence on that?

MS. SMITH: Each doctor testifies about

their own dilation protocols, Your Honor, and I believe

that's in the Eighth Circuit appendix. Those -- those

-- portions of that testimony, and are cited more

specifically in the Eighth Circuit briefs, which goes

more into the factual detail, Your Honor, but I don't

have the cites right now. I'm sorry.

JUSTICE GINSBURG: If there were a health

exception --

MS. SMITH: Yes.

JUSTICE GINSBURG: The health of the woman,

would that obviate the vagueness and overbreadth

problems that you bring up? Because then after we say

to the doctor, you put the health of your patients first

and if you think that it's riskier for her health to do

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If you had that, then wouldn't the concerns about

overbreadth fade?

MS. SMITH: Not if this is not limited to

intact, Your Honor, because then you would be limiting

D&E abortions, which is 95 percent of all abortions, to

circumstances where the doctor could prove that it was

in fact the safest procedure. And we've had doctors

testify in trial, for example, that they refused to

describe even intact -- regular D&Es to their patients

because they believe induction is always safer. So

those doctors, I think would still be at risk, and it

would put 95 percent of second trimester abortions at

risk in that case, to prosecution for performing a D&E

when you should have been performing an induction

procedure.

CHIEF JUSTICE ROBERTS: Do you think the, on

the same issue I think, that the addition of the

deliberately and intentionally language in the

congressional act addresses that concern?

MS. SMITH: No, Your Honor, because actually

that same language is in the Stenberg, the Nebraska

statute. It also was targeted at deliberately

intentionally. I do think that if there is a

construction that would narrow the law to a limited

amount of intact D&Es, if you read the "for the purpose

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partially delivered living fetus. If that language was

interpreted to be for the sole purpose of performing

fetal demise at that point, rather than what the doctors

do, which is perform the action that causes fetal demise

in order to facilitate delivery of the fetus. So if

it's not to facilitate delivery of the fetus --

JUSTICE KENNEDY: Well, give me one instance

in which your proposed interpretation would work in the

real world.

MS. SMITH: Well, there are allegations in

the Congressional Record, for example, in reference --

in Justice Thomas' dissent by Nurse Schaffer, Dr. Pamela

Smith, about circumstances where the physician actually

holds the fetus in the woman's body in order to cause

fetal demise, rather than causing fetal demise because

it's an integral part of removal of the fetus from the

woman's uterus. And those circumstances would be banned

under that interpretation.

But I want to get back to the Turner point,

if I may for a minute, the issue of deference to

congressional finding.

JUSTICE KENNEDY: Well, just on that last

point, I mean, we are interested of course in different

interpretations, but it just seems to me that your

interpretation would have very little practical effect.

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MS. SMITH: Well, it would -- it would ban

certainly a certain type of intact procedure that was

discussed, and I think is the image many people have of

"partial-birth abortion" frankly, that this is something

that's done gratuitously, not as an integral part of

making this procedure the safest for the woman, and

avoiding instrumentation and avoiding perforation and

hysterectomies, which are serious complications that

though rare, when they occur, they are catastrophic and

life changing and disastrous. So the numbers are not

high of any complications, but the complications when

they occur are, are devastating. And this is what the

doctors are experiencing when they perform intact D&Es,

that they are not having these types of complications.

So -- if I can move to the deference point,

I would like to talk a little bit about deference to

congressional findings because there is significant

authority from this Court of course, saying that where

there are danger signs of constitutional risks, as the

Court recently said in Randall versus Sorrell, that the

Court must independently and carefully review

congressional findings. And the Court has rejected

findings that attempted to change either by findings of

fact or legal findings, that attempted to change a

constitutional standard.

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But in any case, the findings in this case

are simply unreasonable and not supported by the

evidence. If you go to the findings themselves, the

ultimate finding in 14o, which claims that it is

actually relying on the preceding findings, it says,

"for these reasons, Congress finds that partial birth

abortion is never medically indicated," and then you go

backwards and look at the reasons. The reasons are the

findings that are not defended by the Government, that

were not defended by the Government witnesses and that

are blatantly false, except for perhaps one of them.

There are findings of, that partial-birth

abortion poses serious risks. The Government witnesses

agreed that this was not true.

Their findings that partial-birth abortion

is not taught in medical schools. Of course, we know

that is simply not true, it's an integral part of

abortion training at major medical institutions like

Cornell, Columbia, Yale, NYU, Northwestern, etc.

It says that abortion, partial-birth

abortion is a disfavored practice among abortion

providers. That is absolutely not true.

And it says that there are no comparative

studies. We know now that is not true because the

Chasen study has come out, and is the first study of its

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kind to try to evaluate the differences between intact

and non-intact. It is still true that there are no

controlled studies, there is no randomized clinical

trial, but if that were the standard, no new and safer

abortion procedures could ever be developed.

Turning back, Your Honors, to the health issue.

CHIEF JUSTICE ROBERTS: Could I ask you just

one thing?

MS. SMITH: Yes.

CHIEF JUSTICE ROBERTS: The statute, of

course, refers to both feet first and vertex deliveries.

How common is the vertex delivery in the D&X?

MS. SMITH: Not very common. Not very

common, Your Honor. It would occur in circumstances

where there is a significant fetal anomaly and some kind

of a, something called a sides, or another type of fetal

anomaly where there is a distension of the abdomen, but

it's very rare.

CHIEF JUSTICE ROBERTS: And in giving your

arguments toward the safety benefits of the D&X, I

couldn't understand why they wouldn't also apply to the

total delivery of the fetus in a vertex delivery

situation.

MS. SMITH: I'm sorry. I don't know if I

understand.

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CHIEF JUSTICE ROBERTS: Well, my

understanding is that the vertex, the skull and head are

already outside the mother.

MS. SMITH: Yes.

CHIEF JUSTICE ROBERTS: And the objection in

the feet first is that you want fewer instrument

passes and so on.

MS. SMITH: Yes.

CHIEF JUSTICE ROBERTS: But in that case,

it's not the skull itself that is preventing the

delivery of the fetus.

MS. SMITH: Right.

CHIEF JUSTICE ROBERTS: So your arguments

about why the D&X is safer than feet first, wouldn't

that apply in the case of total delivery of the fetus as

well? In other words, if you want as much of the fetus

intact and out as possible, why wait, stop it halfway?

Wouldn't the safety argument suggest delivery of the

fetus?

MS. SMITH: Yes, but these are circumstances

where the fetus can't be delivered. That's the point,

Your Honor, is that the fetus is obstructed and so the

overt act that takes place is --

CHIEF JUSTICE ROBERTS: In the case of a

vertex delivery, where is the obstruction?

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MS. SMITH: The obstruction would come from

a distension of the abdomen, usually from a significant

fetal anomaly like a sides, which is, this is a serious

anomaly. It's lethal anomalies that I was talking

about. And in those circumstances, an overt act would

need to be performed that would in fact cause fetal

demise before the fetus could be, the delivery could be

continued.

JUSTICE KENNEDY: It seems to me that your

argument is that there is always a constitutional right

to use what the physician thinks is the safest

procedure.

MS. SMITH: No, Your Honor. I think the --

JUSTICE KENNEDY: I inferred that from your

comments.

MS. SMITH: I don't think so, Your Honor.

What, what the Court held in Stenberg in applying the

appropriate medical judgment standard of Casey, was that

there had to be a substantial body of medical opinion,

an objective standard that in fact supports the use of

that procedure. And that both, that balances concerns

against protecting a woman's health with a concern of

unfettered discretion, which the Court has rejected.

JUSTICE KENNEDY: So then, you think there

are instances in which the State can require that a

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procedure be used, even if it's not the safest

procedure?

MS. SMITH: I'm sorry. I --

JUSTICE KENNEDY: So then, the --

MS. SMITH: Yeah.

JUSTICE KENNEDY: The obverse of the

proposition I put at first, it must be true that there

are some instances in which the State can prohibit a

procedure even if it is the safest procedure.

MS. SMITH: That's true, Your Honor, as long

as it doesn't pose an undue burden on the woman, which

as you know, certainly the circumstance with the D&E,

which is 95 percent of abortions, under the Stenberg

ruling.

on that?

CHIEF JUSTICE ROBERTS: Can I just follow up

MS. SMITH: Yes.

CHIEF JUSTICE ROBERTS: I don't understand

that. In other words, the fact that it's not the safest

procedure does not itself constitute an undue burden?

In other words, under Justice Kennedy's hypothetical --

MS. SMITH: I don't understand what you

mean.

CHIEF JUSTICE ROBERTS: He said that the

State can prohibit something even if it is the safest

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procedure, and your answer was so long as it doesn't --

MS. SMITH: No.

CHIEF JUSTICE ROBERTS: -- pose an undue

burden. And I was just following up to say that so, in

some circumstances, prohibiting what you regard is the

safest procedure does not itself constitute an undue

burden.

MS. SMITH: No. I understood Justice

Kennedy's question to be, could the State prohibit what

it thinks is not the safest. And under the Stenberg

ruling, although the Court hasn't addressed that

question directly, under Stenberg what the Court has

said is, the Court can ban procedures only where there

is not significant medical authority supporting their

use as the safest procedure in some circumstances. So

perhaps I misunderstood your question.

But the Court has not ever addressed the

question, can we ban a procedure that's not the safest.

I think the ruling in Stenberg would say well, there has

to be significant medical authority that in some

circumstances it is the safest. The alternative

argument would be, but, if it is the procedure that's

used in 95 percent of the cases, or a vast majority of

the cases, and banning it would thereby deny women the

right to get an abortion and be a substantial obstacle

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in their path in obtaining a legal abortion, that would

be another reason why you couldn't ban it.

CHIEF JUSTICE ROBERTS: Thank you,

Miss Smith.

MS. SMITH: Thank you.

CHIEF JUSTICE ROBERTS: General Clement, you

have two minutes remaining.

REBUTTAL ARGUMENT OF PAUL D. CLEMENT

ON BEHALF OF PETITIONER

GENERAL CLEMENT: Thank you, Mr. Chief Justice.

Let me make just a couple of points in rebuttal.

I'd like to start with Justice Kennedy's

question, about whether or not there are going to be

alternative methods available to end the pregnancy as a

practical matter. And the answer to that is there will

always be an alternative available as a practical matter.

The alternative will always be the D&E procedure, which

the district court in this case called the gold standard.

And the best evidence of that, Justice Kennedy, is that

their own witnesses like Dr. Chasen, for example, when

they set out to perform the D&X procedure, they are only

successful about 33 percent of the time. What happens

in the other 67 percent of the cases is they actually,

even though they tried to perform a D&X, will perform a

D&E. And so all of the clinics that provide D&X also

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necessarily provide D&E, because the D&E is what they

end up with if they are not able to remove the fetus

intact. So in every single case, there are some, you

know, the induction procedure has to be done in a

hospital, but the D&X and D&E procedures are both

equally available in clinics, so no woman as either a

theoretical matter or a practical matter, is going to be

denied a safe alternative to end her pregnancy.

I wanted to pick up on Justice Souter's

question as well. You asked for factual citations in

the record on this dispute between us. I think the

record is really overwhelmingly in our favor. I point

you to Dr. Fitzhugh, who's one of the plaintiffs on this

side, 135a. He says he doesn't try for intact delivery

in every case because it would necessitate a second

round of dilation, a second round of laminarias, so he

doesn't do the second round, he gets dismemberment.

Dr. Knorr, another one of the plaintiffs, at page 142a,

he says the procedure would require greater dilation.

And if I could just finish on the citations,

Dr. Vibhakar, who does dismemberment 100 percent of the

time, 148a -- all of these are in the petition appendix

of the district court opinion -- Dr. Cranen explains his

procedure at 174a to 177a. Thank you

CHIEF JUSTICE ROBERTS: Thank you, General.

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The case is submitted.

(Whereupon, at 11:07 a.m., the case in the

above-entitled matter was submitted.)

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US Supreme Court: 05-380