Summary of Brief Filed by Planned Parenthood In the U.S. Supreme Court in Gonzales v. Planned Parenthood Federation of America, No. 05-1382

• Like the Nebraska statute, the act is unconstitutional because any dilation and evacuation (D&E) abortion (the method used in more than 95 percent of pre-viability second-trimester abortions) can violate the terms of the act when performed most safely. The act will therefore chill physicians from performing any D&E, or will force them at times to alter their practices to avoid criminal prosecution — even if it means proceeding against their best medical judgment. In either event, women's liberty will be unconstitutionally infringed and their right to choose abortion unduly burdened.
  
• Alternatively, if the terms of the act do not put physicians at risk each time they perform a D&E (in other words, if the act does not mean what it says), then it fails to provide physicians with fair warning as to which abortions are permitted, and which are federal felonies; and is, thus, unconstitutionally vague.
  
• The act is also unconstitutional because it lacks a health exception. The trial court record demonstrates beyond cavil that there are numerous circumstances where women suffering from serious medical conditions or carrying fetuses with severe anomalies would derive meaningful medical benefits from abortions that would violate the act, even if it is construed narrowly. Therefore, under long-standing precedent, the act must contain an exception to allow the banned procedures whenever necessary to protect a woman from a significant health risk.
  
• In place of a health exception, the act contains congressional "findings," asserting that no health exception is needed and that the Supreme Court must "defer" to the findings. But, because the findings attempt to circumvent the Supreme Court's authority to determine the scope of protection for women's health in the context of abortion regulations, no deference is due. This is especially so because the findings are patently unreasonable and belied by the overwhelming weight of the evidence.
  
• The court should reject DOJ's alternative argument that Stenberg v. Carhart should be overruled. Overturning Stenberg would threaten the consistent line of precedent that pregnant women cannot be forced by an abortion regulation to sacrifice or compromise their health. In addition, given that the only change in facts or circumstances since Stenberg is the change in the court's composition, overturning Stenberg would invite the perception that the court is little different from the two political branches of the government.¹
  
• Given the significant constitutional defects in the act, it must be permanently enjoined in its entirety. The court cannot "rewrite" the law to attempt to remedy its flaws because doing so would involve the court in the inherently legislative task of drafting statutes, and would directly contravene Congress's very clear intent to pass an abortion ban that makes no exception for women's health.

• The terms "partial-birth" abortion and "late-term" abortion, which are often used as synonyms for intact D&E, are blatantly misleading. Intact D&E is used predominantly in the second trimester — or "mid-term" — of pregnancy. And only pre-viability abortions are at issue because Planned Parenthood's health centers perform no post-viability abortions.
  
• Claims that the health benefits of intact D&E are "marginal" and that intact D&E is "never medically indicated" are refuted by the record. Leading obstetrician-gynecologists — including an expert panel assembled by the American College of Obstetricians and Gynecologists ("ACOG") — identified a range of specific medical circumstances in which intact D&E has meaningful safety advantages over other methods.
  
• Contradicting Congress's finding that intact D&E is a "disfavored" medical procedure, many major medical organizations - including ACOG, the American Medical Association, the California Medical Association, and the American Public Health Association - believe that intact D&E carries meaningful safety advantages over other methods. No comparable medical organizations supported the act.
  
• Congress's finding that "no medical schools" teach intact D&E is verifiably false. Intact D&E is taught at leading medical schools, such as those at Columbia University, Cornell University, New York University, Northwestern University, University of Pittsburgh, University of California at San Francisco, and Albert Einstein College of Medicine, and will likely be taught at Yale University.
  
• There is no moral or ethical consensus condemning intact D&E. Rather, there are significant moral and ethical concerns on both sides, including the ethics of denying women access to the safest treatment and forcing doctors to use medical techniques they consider less safe.

¹The Stenberg ruling was 5-4, with Justice O’Connor (who has since been replaced by Justice Alito) casting the deciding vote.