No. 04-4371
Planned Parenthood, et al. v. Taft, et al.
Page 5
offers textual support for a per se requirement. In Casey the Court stated that the second essential holding
of Roe v. Wade was “a confirmation of the State’s power to restrict abortions after fetal viability, if the law
contains exceptions for pregnancies which endanger the woman’s life or health.” Casey, 505 U.S. at 846.
However, this lone statement must be read in the context of the many other statements in Casey, Carhart,
and Ayotte which frame the same general principle in slightly, but significantly, different terms. For
example, the Casey Court stated that “the essential holding of Roe forbids a State to interfere with a
woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to
her health.” Id. at 880; see also Carhart, 530 U.S. at 931 (“[T]he governing standard requires an exception
where it is necessary, in appropriate medical judgment for the preservation of the life or health of the
mother.”); Ayotte, 126 S. Ct. at 967 (“[O]ur precedents hold, that a State may not restrict access to abortions
that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.”).
The latter, more predominant, way the health or life exception requirement is expressed indicates that a
statute which regulated abortion, but did not pose any significant risk to a woman’s health or life, would not
violate the health or life exception requirement.
Furthermore, the Supreme Court’s application of the health or life exception requirement further
undermines the slender textual support for a per se requirement. In Carhart, the Court invalidated
Nebraska’s ban on partial-birth abortion because although it contained a life exception, it did not contain
a health exception. Carhart, 530 U.S. at 930-38. The language throughout the opinion shows that before
coming to this conclusion the Court carefully considered whether a health exception was necessary. Id. at
934-37 (“We find these eight arguments insufficient to demonstrate that Nebraska’s law needs no health
exception.” “Given these medically related evidentiary circumstances, we believe the law requires a health
exception.”). If an abortion statute is per se unconstitutional without a health or life exception, the Court
would only have had to note that the statute at issue regulated abortion and that it did not have a health
exception. Those two facts alone (neither of which was disputed) would have been sufficient to find a
constitutional violation. Both the Court’s predominant discussion of the health or life exception requirement
and its application demonstrate
that there is no such per se requirement.
Neither can support for a per se requirement be found in any of the cases from other circuits cited
in the briefs. Although the First Circuit has stated that a health or life exception is a per se requirement, in
the same case it went on to observe that all three times an abortion statute has been challenged in the
Supreme Court, “the Court has indicated that an exception must be provided when the restriction would
place a woman’s health at risk.” Planned Parenthood of Northern New England v. Heed, 390 F.3d 53, 59-
60 (1st Cir. 2004) (emphasis added), vacated and remanded on other grounds sub nom. Ayotte v. Planned
Parenthood of Northern New England, — U.S. —, 126 S. Ct. 961 (2006). Since the court expressed the
requirement both ways and did not examine the issue in detail, its commentary is not helpful one way or the
other.
At first glance, it appears that the Ninth Circuit
has followed a per se approach because it has statedthat “[a]n adequate health exception . . . is a per se constitutional requirement.” Planned Parenthood v.
Wasden, 376 F.3d 908, 922 (9th Cir. 2004). However, the context shows that the Ninth Circuit was not
imposing a per se requirement as the district court did here, but rather holding that determining whether a
health or life exception is constitutionally necessary “requires an analysis separate from any undue burden
inquiry.” Id. The Ninth Circuit’s use of the phrase “per se requirement” describes the fact that the health
or life exception requirement is separate and distinct from the undue burden standard. See id. The Wasden
court does not use the phrase “per se requirement” the same way that the parties and the district court in this
litigation have used it, which is to refer to the proposition that every law which affects abortion must contain
a health or life exception. Consequently, Wasden does not support a per se requirement that all abortion
statutes must have a health or life exception.
The Fourth and Eighth Circuits have also stated that the health or life exception requirement is a “per
se constitutional rule.” Richmond Med. Center for Women v. Hicks, 409 F.3d 619, 625 (4th Cir. 2005);
Reproductive Health Services of Planned Parenthood v. Nixon, 429 F.3d 803, 805-06 (8th Cir. 2005);