OPINION OF THE COURT GONZALES V. CARHART 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-380 AND 05-1382 ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER

															05–380 v. LEROY CARHART et al. on writ of certiorari to the united states
court of appeals for the eighth circuit ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER 05–1382   v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.,
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit [April 18, 2007] Justice Kennedy delivered the opinion of the Court.

															   These cases require us to
consider the validity of the Partial-Birth Abortion Ban Act of 2003
(Act), 18 U. S. C. §1531 (2000 ed., Supp. IV), a federal
statute regulating abortion procedures. In recitations preceding
its operative provisions the Act refers to the Court’s opinion in Stenberg v. Carhart , 530 U. S. 914 (2000),
which also addressed the subject of abortion procedures used in the
later stages of pregnancy. Compared to the state statute at issue
in Stenberg , the Act is more specific concerning the
instances to which it applies and in this respect more precise in
its coverage. We conclude the Act should be sustained against the
objections lodged by the broad, facial attack brought against
it.

															   In No. 05–380 (Carhart) respondents
are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill
L. Vibhakar, doctors who perform second-trimester abortions. These
doctors filed their complaint against the Attorney General of the
United States in the United States District Court for the District
of Nebraska. They challenged the constitutionality of the Act and
sought a permanent injunction against its enforcement. Carhart v. Ashcroft , 331 F. Supp. 2d 805
(2004). In 2004, after a 2-week trial, the District Court granted a
permanent injunction that prohibited the Attorney General from
enforcing the Act in all cases but those in which there was no
dispute the fetus was viable. Id., at 1048. The Court of
Appeals for the Eighth Circuit affirmed. 413 F. 3d 791 (2005).
We granted certiorari. 546 U. S. 1169 (2006).

															   In No. 05–1382 (Planned Parenthood) respondents are Planned Parenthood Federation of America, Inc.,
Planned Parenthood Golden Gate, and the City and County of San
Francisco. The Planned Parenthood entities sought to enjoin
enforcement of the Act in a suit filed in the United States
District Court for the Northern District of California. Planned
Parenthood Federation of Am. v. Ashcroft , 320
F. Supp. 2d 957 (2004). The City and County of San Francisco
intervened as a plaintiff. In 2004, the District Court held a trial
spanning a period just short of three weeks, and it, too, enjoined
the Attorney General from enforcing the Act. Id., at 1035.
The Court of Appeals for the Ninth Circuit affirmed. 435 F. 3d
1163 (2006). We granted certiorari. 547 U. S. ___ (2006).

															I

															A

															   The Act proscribes a particular
manner of ending fetal life, so it is necessary here, as it was in Stenberg , to discuss abortion procedures in some detail.
Three United States District Courts heard extensive evidence
describing the procedures. In addition to the two courts involved
in the instant cases the District Court for the Southern District
of New York also considered the constitutionality of the Act. Nat. Abortion Federation v. Ashcroft , 330
F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second
Circuit affirmed, Nat. Abortion Federation v. Gonzales , 437 F. 3d 278 (2006). The three District
Courts relied on similar medical evidence; indeed, much of the
evidence submitted to the Carhart court previously had
been submitted to the other two courts. 331 F. Supp. 2d, at
809–810. We refer to the District Courts’ exhaustive opinions in
our own discussion of abortion procedures.

															   Abortion methods vary depending
to some extent on the preferences of the physician and, of course,
on the term of the pregnancy and the resulting stage of the unborn
child’s development. Between 85 and 90 percent of the approximately
1.3 million abortions performed each year in the United States take
place in the first three months of pregnancy, which is to say in
the first trimester. Planned Parenthood , 320 F. Supp.
2d, at 960, and n. 4; App. in No. 05–1382, pp. 45–48. The most
common first-trimester abortion method is vacuum aspiration
(otherwise known as suction curettage) in which the physician
vacuums out the embryonic tissue. Early in this trimester an
alternative is to use medication, such as mifepristone (commonly
known as RU–486), to terminate the pregnancy. Nat. Abortion
Federation, supra, at 464, n. 20. The Act does not
regulate these procedures.

															   Of the remaining abortions that take place
each year, most occur in the second trimester. The surgical
procedure referred to as “dilation and evacuation” or “D&E” is
the usual abortion method in this trimester. Planned
Parenthood , 320 F. Supp. 2d, at 960–961. Although
individual techniques for performing D&E differ, the general
steps are the same.

															   A doctor must first dilate the cervix at least
to the extent needed to insert surgical instruments into the uterus
and to maneuver them to evacuate the fetus. Nat. Abortion
Federation, supra , at 465; App. in No. 05–1382, at 61. The
steps taken to cause dilation differ by physician and gestational
age of the fetus. See, e.g., Carhart , 331
F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874,
876–877, 880, 883, 886. A doctor often begins the dilation process
by inserting osmotic dilators, such as laminaria (sticks of
seaweed), into the cervix. The dilators can be used in combination
with drugs, such as misoprostol, that increase dilation. The
resulting amount of dilation is not uniform, and a doctor does not
know in advance how an individual patient will respond. In general
the longer dilators remain in the cervix, the more it will dilate.
Yet the length of time doctors employ osmotic dilators varies. Some
may keep dilators in the cervix for two days, while others use
dilators for a day or less. Nat. Abortion Federation,
supra , at 464–465; Planned Parenthood, supra , at
961.

															   After sufficient dilation the surgical
operation can commence. The woman is placed under general
anesthesia or conscious sedation. The doctor, often guided by
ultrasound, inserts grasping forceps through the woman’s cervix and
into the uterus to grab the fetus. The doctor grips a fetal part
with the forceps and pulls it back through the cervix and vagina,
continuing to pull even after meeting resistance from the cervix.
The friction causes the fetus to tear apart. For example, a leg
might be ripped off the fetus as it is pulled through the cervix
and out of the woman. The process of evacuating the fetus piece by
piece continues until it has been completely removed. A doctor may
make 10 to 15 passes with the forceps to evacuate the fetus in its
entirety, though sometimes removal is completed with fewer passes.
Once the fetus has been evacuated, the placenta and any remaining
fetal material are suctioned or scraped out of the uterus. The
doctor examines the different parts to ensure the entire fetal body
has been removed. See, e.g., Nat. Abortion Federation,
supra , at 465; Planned Parenthood, supra , at 962.

															   Some doctors, especially later in the second
trimester, may kill the fetus a day or two before performing the
surgical evacuation. They inject digoxin or potassium chloride into
the fetus, the umbilical cord, or the amniotic fluid. Fetal demise
may cause contractions and make greater dilation possible. Once
dead, moreover, the fetus’ body will soften, and its removal will
be easier. Other doctors refrain from injecting chemical agents,
believing it adds risk with little or no medical benefit. Carhart, supra , at 907–912; Nat. Abortion Federation,
supra , at 474–475.

															   The abortion procedure that was the impetus
for the numerous bans on “partial-birth abortion,” including the
Act, is a variation of this standard D&E. See M. Haskell,
Dilation and Extraction for Late Second Trimester Abortion (1992),
1 Appellant’s App. in No. 04–3379 (CA8), p. 109 (hereinafter
Dilation and Extraction). The medical community has not reached
unanimity on the appropriate name for this D&E variation. It
has been referred to as “intact D&E,” “dilation and extraction”
(D&X), and “intact D&X.” Nat. Abortion Federation,
supra , at 440, n. 2; see also F. Cunningham et al.,
Williams Obstetrics 243 (22d ed. 2005) (identifying the procedure
as D&X); Danforth’s Obstetrics and Gynecology 567 (J. Scott, R.
Gibbs, B. Karlan, & A. Haney eds. 9th ed. 2003) (identifying
the procedure as intact D&X); M. Paul, E. Lichtenberg, L.
Borgatta, D. Grimes, & P. Stubblefield, A Clinician’s Guide to
Medical and Surgical Abortion 136 (1999) (identifying the procedure
as intact D&E). For discussion purposes this D&E variation
will be referred to as intact D&E. The main difference between
the two procedures is that in intact D&E a doctor extracts the
fetus intact or largely intact with only a few passes. There are no
comprehensive statistics indicating what percentage of all D&Es
are performed in this manner.

															   Intact D&E, like regular D&E, begins
with dilation of the cervix. Sufficient dilation is essential for
the procedure. To achieve intact extraction some doctors thus may
attempt to dilate the cervix to a greater degree. This approach has
been called “serial” dilation. Carhart, supra , at 856,
870, 873; Planned Parenthood, supra , at 965. Doctors who
attempt at the outset to perform intact D&E may dilate for two
full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; Carhart, supra , at 865, 868,
876, 886.

															   In an intact D&E procedure the doctor
extracts the fetus in a way conducive to pulling out its entire
body, instead of ripping it apart. One doctor, for example,
testified:

															   “If I know I have good dilation
and I reach in and the fetus starts to come out and I think I can
accomplish it, the abortion with an intact delivery, then I use my
forceps a little bit differently. I don’t close them quite so much,
and I just gently draw the tissue out attempting to have an intact
delivery, if possible.” App. in No. 05–1382, at 74.

															Rotating the fetus as it is being pulled decreases
the odds of dismemberment. Carhart, supra , at 868–869;
App. in No. 05–380, pp. 40–41; 5 Appellant’s App. in No. 04–3379
(CA8), p. 1469. A doctor also “may use forceps to grasp a fetal
part, pull it down, and re-grasp the fetus at a higher
level—sometimes using both his hand and a forceps—to exert traction
to retrieve the fetus intact until the head is lodged in the
[cervix].” Carhart , 331 F. Supp. 2d, at 886–887.

															   Intact D&E gained public notoriety when,
in 1992, Dr. Martin Haskell gave a presentation describing his
method of performing the operation. Dilation and Extraction
110–111. In the usual intact D&E the fetus’ head lodges in the
cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05–380, at 577; App. in
No. 05–1382, at 74, 282. Haskell explained the next step as
follows:

															“ ‘At this point, the right-handed surgeon
slides the fingers of the left [hand] along the back of the fetus
and “hooks” the shoulders of the fetus with the index and ring
fingers (palm down).

															“ ‘While maintaining this tension, lifting the cervix and
applying traction to the shoulders with the fingers of the left
hand, the surgeon takes a pair of blunt curved Metzenbaum scissors
in the right hand. He carefully advances the tip, curved down,
along the spine and under his middle finger until he feels it
contact the base of the skull under the tip of his middle
finger.

															“ ‘[T]he surgeon then forces the scissors into the base of
the skull or into the foramen magnum. Having safely entered the
skull, he spreads the scissors to enlarge the opening.

															“ ‘The surgeon removes the scissors and introduces a
suction catheter into this hole and evacuates the skull contents.
With the catheter still in place, he applies traction to the fetus,
removing it completely from the patient.’ ” H. R. Rep.
No. 108–58, p. 3 (2003).

															   This is an abortion doctor’s
clinical description. Here is another description from a nurse who
witnessed the same method performed on a 26-week fetus and who
testified before the Senate Judiciary Committee:

															   “ ‘Dr. Haskell went in with
forceps and grabbed the baby’s legs and pulled them down into the
birth canal. Then he delivered the baby’s body and the
arms—everything but the head. The doctor kept the head right inside
the uterus… .

															   “ ‘The baby’s little fingers were
clasping and unclasping, and his little feet were kicking. Then the
doctor stuck the scissors in the back of his head, and the baby’s
arms jerked out, like a startle reaction, like a flinch, like a
baby does when he thinks he is going to fall.

															   “ ‘The doctor opened up the scissors,
stuck a high-powered suction tube into the opening, and sucked the
baby’s brains out. Now the baby went completely limp… .

															   “ ‘He cut the umbilical cord and
delivered the placenta. He threw the baby in a pan, along with the
placenta and the instruments he had just used.’ ” Ibid. Dr. Haskell’s approach is not
the only method of killing the fetus once its head lodges in the
cervix, and “the process has evolved” since his presentation.
Planned Parenthood , 320 F. Supp. 2d, at 965. Another
doctor, for example, squeezes the skull after it has been pierced
“so that enough brain tissue exudes to allow the head to pass
through.” App. in No. 05–380, at 41; see also Carhart,
supra, at 866–867, 874. Still other physicians reach into the
cervix with their forceps and crush the fetus’ skull. Carhart,
supra , at 858, 881. Others continue to pull the fetus out of
the woman until it disarticulates at the neck, in effect
decapitating it. These doctors then grasp the head with forceps,
crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra , at 965.

															   Some doctors performing an intact D&E
attempt to remove the fetus without collapsing the skull. See Carhart, supra , at 866, 869. Yet one doctor would not
allow delivery of a live fetus younger than 24 weeks because “the
objective of [his] procedure is to perform an abortion,” not a
birth. App. in No. 05–1382, at 408–409. The doctor thus answered in
the affirmative when asked whether he would “hold the fetus’ head
on the internal side of the [cervix] in order to collapse the
skull” and kill the fetus before it is born. Id., at 409;
see also Carhart, supra , at 862, 878. Another doctor
testified he crushes a fetus’ skull not only to reduce its size but
also to ensure the fetus is dead before it is removed. For the
staff to have to deal with a fetus that has “some viability to it,
some movement of limbs,” according to this doctor, “[is] always a
difficult situation.” App. in No. 05–380, at 94; see Carhart,
supra , at 858.

															   D&E and intact D&E are not the only
second-trimester abortion methods. Doctors also may abort a fetus
through medical induction. The doctor medicates the woman to induce
labor, and contractions occur to deliver the fetus. Induction,
which unlike D&E should occur in a hospital, can last as little
as 6 hours but can take longer than 48. It accounts for about five
percent of second-trimester abortions before 20 weeks of gestation
and 15 percent of those after 20 weeks. Doctors turn to two other
methods of second-trimester abortion, hysterotomy and hysterectomy,
only in emergency situations because they carry increased risk of
complications. In a hysterotomy, as in a cesarean section, the
doctor removes the fetus by making an incision through the abdomen
and uterine wall to gain access to the uterine cavity. A
hysterectomy requires the removal of the entire uterus. These two
procedures represent about .07% of second-trimester abortions. Nat. Abortion Federation , 330 F. Supp. 2d, at 467; Planned Parenthood, supra , at 962–963.

															B

															   After Dr. Haskell’s procedure
received public attention, with ensuing and increasing public
concern, bans on “ ‘partial birth abortion’ ”
proliferated. By the time of the Stenberg decision, about
30 States had enacted bans designed to prohibit the procedure. 530
U. S., at 995–996, and nn. 12–13 (Thomas, J., dissenting); see also
H. R. Rep. No. 108–58, at 4–5. In 1996, Congress also
acted to ban partial-birth abortion. President Clinton vetoed the
congressional legislation, and the Senate failed to override the
veto. Congress approved another bill banning the procedure in 1997,
but President Clinton again vetoed it. In 2003, after this Court’s
decision in Stenberg , Congress passed the Act at issue
here. H. R. Rep. No. 108–58, at 12–14. On November 5, 2003,
President Bush signed the Act into law. It was to take effect the
following day. 18 U. S. C. §1531(a) (2000 ed., Supp. IV).

															   The Act responded to Stenberg in two ways. First, Congress made factual
findings. Congress determined that this Court in Stenberg “was required to accept the very questionable findings issued by
the district court judge,” §2(7), 117 Stat. 1202, notes following
18 U. S. C. §1531 (2000 ed., Supp. IV), p. 768, ¶(7)
(Congressional Findings), but that Congress was “not bound to
accept the same factual findings,” ibid., ¶(8). Congress
found, among other things, that “[a] moral, medical, and ethical
consensus exists that the practice of performing a partial-birth
abortion … is a gruesome and inhumane procedure that is never
medically necessary and should be prohibited.” Id., at
767, ¶(1).

															   Second, and more relevant here, the Act’s
language differs from that of the Nebraska statute struck down in Stenberg . See 530 U. S., at 921–922 (quoting Neb. Rev.
Stat. Ann. §§28–328(1), 28–326(9) (Supp. 1999)). The operative
provisions of the Act provide in relevant part:

															   “(a) Any physician who, in or
affecting interstate or foreign commerce, knowingly performs a
partial-birth abortion and thereby kills a human fetus shall be
fined under this title or imprisoned not more than 2 years, or
both. This subsection does not apply to a partial-birth abortion
that is necessary to save the life of a mother whose life is
endangered by a physical disorder, physical illness, or physical
injury, including a life-endangering physical condition caused by
or arising from the pregnancy itself. This subsection takes effect
1 day after the enactment.

															“(b) As used in this section—

															“(1) the term ‘partial-birth abortion’ means an abortion in
which the person performing the abortion—

															“(A) deliberately and intentionally vaginally delivers a living
fetus until, in the case of a head-first presentation, the entire
fetal head is outside the body of the mother, or, in the case of
breech presentation, any part of the fetal trunk past the navel is
outside the body of the mother, for the purpose of performing an
overt act that the person knows will kill the partially delivered
living fetus; and

															“(B) performs the overt act, other than completion of delivery,
that kills the partially delivered living fetus; and

															“(2) the term ‘physician’ means a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery by
the State in which the doctor performs such activity, or any other
individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a
physician or not otherwise legally authorized by the State to
perform abortions, but who nevertheless directly performs a
partial-birth abortion, shall be subject to the provisions of this
section.

															.     .     .     .     .

															“(d)(1) A defendant accused of an offense under this section may
seek a hearing before the State Medical Board on whether the
physician’s conduct was necessary to save the life of the mother
whose life was endangered by a physical disorder, physical illness,
or physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy itself.

															“(2) The findings on that issue are admissible on that issue at
the trial of the defendant. Upon a motion of the defendant, the
court shall delay the beginning of the trial for not more than 30
days to permit such a hearing to take place.

															“(e) A woman upon whom a partial-birth abortion is performed may
not be prosecuted under this section, for a conspiracy to violate
this section, or for an offense under section 2, 3, or 4 of this
title based on a violation of this section.” 18 U. S. C. §1531
(2000 ed., Supp. IV).

															The Act also includes a provision authorizing civil
actions that is not of relevance here. §1531(c).

															C

															   The District Court in Carhart concluded the Act was unconstitutional for two
reasons. First, it determined the Act was unconstitutional because
it lacked an exception allowing the procedure where necessary for
the health of the mother. 331 F. Supp. 2d, at 1004–1030.
Second, the District Court found the Act deficient because it
covered not merely intact D&E but also certain other D&Es. Id., at 1030–1037.

															   The Court of Appeals for the
Eighth Circuit addressed only the lack of a health exception. 413
F. 3d, at 803–804. The court began its analysis with what it
saw as the appropriate question—“whether ‘substantial medical
authority’ supports the medical necessity of the banned procedure.” Id., at 796 (quoting Stenberg , 530 U. S., at
938). This was the proper framework, according to the Court of
Appeals, because “when a lack of consensus exists in the medical
community, the Constitution requires legislatures to err on the
side of protecting women’s health by including a health exception.”
413 F. 3d, at 796. The court rejected the Attorney General’s
attempt to demonstrate changed evidentiary circumstances since Stenberg and considered itself bound by Stenberg ’s conclusion that a health exception was
required. 413 F. 3d, at 803 (explaining “[t]he record in [the]
case and the record in Stenberg [were] similar in all
significant respects”). It invalidated the Act. Ibid. D The District Court in Planned
Parenthood concluded the Act was unconstitutional “because it
(1) pose[d] an undue burden on a woman’s ability to choose a second
trimester abortion; (2) [was] unconstitutionally vague; and (3)
require[d] a health exception as set forth by … Stenberg .”
320 F. Supp. 2d, at 1034–1035.

															   The Court of Appeals for the
Ninth Circuit agreed. Like the Court of Appeals for the Eighth
Circuit, it concluded the absence of a health exception rendered
the Act unconstitutional. The court interpreted Stenberg to require a health exception unless “there is consensus in the
medical community that the banned procedure is never medically
necessary to preserve the health of women.” 435 F. 3d, at
1173. Even after applying a deferential standard of review to
Congress’ factual findings, the Court of Appeals determined
“substantial disagreement exists in the medical community regarding
whether” the procedures prohibited by the Act are ever necessary to
preserve a woman’s health. Id. , at 1175–1176.

															   The Court of Appeals concluded further that
the Act placed an undue burden on a woman’s ability to obtain a
second-trimester abortion. The court found the textual differences
between the Act and the Nebraska statute struck down in Stenberg insufficient to distinguish D&E and intact
D&E. 435 F. 3d, at 1178–1180. As a result, according to
the Court of Appeals, the Act imposed an undue burden because it
prohibited D&E. Id. , at 1180–1181.

															   Finally, the Court of Appeals found the Act
void for vagueness. Id., at 1181. Abortion doctors
testified they were uncertain which procedures the Act made
criminal. The court thus concluded the Act did not offer physicians
clear warning of its regulatory reach. Id., at 1181–1184.
Resting on its understanding of the remedial framework established
by this Court in Ayotte v. Planned Parenthood of
Northern New Eng. , 546 U. S. 320 , 328–330
(2006), the Court of Appeals held the Act was unconstitutional on
its face and should be permanently enjoined. 435 F. 3d, at
1184–1191.

															II

															   The principles set forth in the
joint opinion in Planned Parenthood of Southeastern Pa. v. Casey , 505
U. S. 833 (1992), did not find support from all those who join
the instant opinion. See id., at 979–1002 (Scalia, J.,
joined by Thomas, J., inter alios, concurring in judgment
in part and dissenting in part). Whatever one’s views concerning
the Casey joint opinion, it is evident a premise central
to its conclusion—that the government has a legitimate and
substantial interest in preserving and promoting fetal life—would
be repudiated were the Court now to affirm the judgments of the
Courts of Appeals. Casey involved a
challenge to Roe v. Wade , 410 U. S. 113 (1973).
The opinion contains this summary:

															   “It must be stated at the outset
and with clarity that Roe ’s essential holding, the holding
we reaffirm, has three parts. First is a recognition of the right
of the woman to choose to have an abortion before viability and to
obtain it without undue interference from the State. Before
viability, the State’s interests are not strong enough to support a
prohibition of abortion or the imposition of a substantial obstacle
to the woman’s effective right to elect the procedure. Second is 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. And third is the principle
that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the
fetus that may become a child. These principles do not contradict
one another; and we adhere to each.” 505 U. S., at 846 (opinion of
the Court).

															Though all three holdings are implicated in the
instant cases, it is the third that requires the most extended
discussion; for we must determine whether the Act furthers the
legitimate interest of the Government in protecting the life of the
fetus that may become a child.

															   To implement its holding, Casey rejected both Roe ’s rigid trimester framework and the
interpretation of Roe that considered all previability
regulations of abortion unwarranted. 505 U. S., at 875–876, 878
(plurality opinion). On this point Casey overruled the
holdings in two cases because they undervalued the State’s interest
in potential life. See id., at 881–883 (joint opinion)
(overruling Thornburgh v. American College of
Obstetricians and Gynecologists , 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health,
Inc. , 462 U. S.
416 (1983)).

															   We assume the following principles for the
purposes of this opinion. Before viability, a State “may not
prohibit any woman from making the ultimate decision to terminate
her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may
not impose upon this right an undue burden, which exists if a
regulation’s “purpose or effect is to place a substantial obstacle
in the path of a woman seeking an abortion before the fetus attains
viability.” Id., at 878. On the other hand, “[r]egulations
which do no more than create a structural mechanism by which the
State, or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not a
substantial obstacle to the woman’s exercise of the right to
choose.” Id., at 877. Casey , in short, struck a
balance. The balance was central to its holding. We now apply its
standard to the cases at bar.

															III

															   We begin with a determination of
the Act’s operation and effect. A straightforward reading of the
Act’s text demonstrates its purpose and the scope of its
provisions: It regulates and proscribes, with exceptions or
qualifications to be discussed, performing the intact D&E
procedure.

															   Respondents agree the Act
encompasses intact D&E, but they contend its additional reach
is both unclear and excessive. Respondents assert that, at the
least, the Act is void for vagueness because its scope is
indefinite. In the alternative, respondents argue the Act’s text
proscribes all D&Es. Because D&E is the most common
second-trimester abortion method, respondents suggest the Act
imposes an undue burden. In this litigation the Attorney General
does not dispute that the Act would impose an undue burden if it
covered standard D&E.

															   We conclude that the Act is not void for
vagueness, does not impose an undue burden from any overbreadth,
and is not invalid on its face.

															A

															   The Act punishes “knowingly
perform[ing]” a “partial-birth abortion.” §1531(a) (2000 ed., Supp.
IV). It defines the unlawful abortion in explicit terms.
§1531(b)(1).

															   First, the person performing the
abortion must “vaginally delive[r] a living fetus.” §1531(b)(1)(A).
The Act does not restrict an abortion procedure involving the
delivery of an expired fetus. The Act, furthermore, is inapplicable
to abortions that do not involve vaginal delivery (for instance,
hysterotomy or hysterectomy). The Act does apply both previability
and postviability because, by common understanding and scientific
terminology, a fetus is a living organism while within the womb,
whether or not it is viable outside the womb. See, e.g., Planned Parenthood , 320 F. Supp. 2d, at 971–972. We
do not understand this point to be contested by the parties.

															   Second, the Act’s definition of partial-birth
abortion requires the fetus to be delivered “until, in the case of
a head-first presentation, the entire fetal head is outside the
body of the mother, or, in the case of breech presentation, any
part of the fetal trunk past the navel is outside the body of the
mother.” §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General
concedes, and we agree, that if an abortion procedure does not
involve the delivery of a living fetus to one of these “anatomical
‘landmarks’ ”—where, depending on the presentation, either the
fetal head or the fetal trunk past the navel is outside the body of
the mother—the prohibitions of the Act do not apply. Brief for
Petitioner in No. 05–380, p. 46.

															   Third, to fall within the Act, a doctor must
perform an “overt act, other than completion of delivery, that
kills the partially delivered living fetus.” §1531(b)(1)(B) (2000
ed., Supp. IV). For purposes of criminal liability, the overt act
causing the fetus’ death must be separate from delivery. And the
overt act must occur after the delivery to an anatomical landmark.
This is because the Act proscribes killing “the partially
delivered” fetus, which, when read in context, refers to a fetus
that has been delivered to an anatomical landmark. Ibid. Fourth, the Act contains scienter requirements
concerning all the actions involved in the prohibited abortion. To
begin with, the physician must have “deliberately and
intentionally” delivered the fetus to one of the Act’s anatomical
landmarks. §1531(b)(1)(A). If a living fetus is delivered past the
critical point by accident or inadvertence, the Act is
inapplicable. In addition, the fetus must have been delivered “for
the purpose of performing an overt act that the [doctor] knows will
kill [it].” Ibid. If either intent is absent, no crime has
occurred. This follows from the general principle that where
scienter is required no crime is committed absent the requisite
state of mind. See generally 1 W. LaFave, Substantive Criminal Law
§5.1 (2d ed. 2003) (hereinafter LaFave); 1 C. Torcia, Wharton’s
Criminal Law §27 (15th ed. 1993).

															B

															   Respondents contend the language
described above is indeterminate, and they thus argue the Act is
unconstitutionally vague on its face. “As generally stated, the
void-for-vagueness doctrine requires that a penal statute define
the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson , 461 U. S. 352 , 357
(1983); Posters ‘N’ Things, Ltd. v. United
States , 511 U.
S. 513 , 525 (1994). The Act satisfies both requirements.

															   The Act provides doctors “of
ordinary intelligence a reasonable opportunity to know what is
prohibited.” Grayned v. City of Rockford , 408 U. S. 104 ,
108 (1972). Indeed, it sets forth “relatively clear guidelines as
to prohibited conduct” and provides “objective criteria” to
evaluate whether a doctor has performed a prohibited procedure. Posters ‘N’ Things, supra , at 525–526. Unlike the
statutory language in Stenberg that prohibited the
delivery of a “ ‘substantial portion’ ” of the
fetus—where a doctor might question how much of the fetus is a
substantial portion—the Act defines the line between potentially
criminal conduct on the one hand and lawful abortion on the other. Stenberg , 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann.
§28–326(9) (Supp. 1999)). Doctors performing D&E will know that
if they do not deliver a living fetus to an anatomical landmark
they will not face criminal liability.

															   This conclusion is buttressed by the intent
that must be proved to impose liability. The Court has made clear
that scienter requirements alleviate vagueness concerns. Posters ‘N’ Things, supra , at 526; see also Colautti v. Franklin , 439 U. S. 379 , 395
(1979) (“This Court has long recognized that the constitutionality
of a vague statutory standard is closely related to whether that
standard incorporates a requirement of mens rea ”). The Act
requires the doctor deliberately to have delivered the fetus to an
anatomical landmark. §1531(b)(1)(A) (2000 ed., Supp. IV). Because a
doctor performing a D&E will not face criminal liability if he
or she delivers a fetus beyond the prohibited point by mistake, the
Act cannot be described as “a trap for those who act in good
faith.” Colautti, supra , at 395 (internal quotation marks
omitted).

															   Respondents likewise have failed to show that
the Act should be invalidated on its face because it encourages
arbitrary or discriminatory enforcement. Kolender, supra ,
at 357. Just as the Act’s anatomical landmarks provide doctors with
objective standards, they also “establish minimal guidelines to
govern law enforcement.” Smith v. Goguen , 415 U. S. 566 ,
574 (1974). The scienter requirements narrow the scope of the Act’s
prohibition and limit prosecutorial discretion. It cannot be said
that the Act “vests virtually complete discretion in the hands of
[law enforcement] to determine whether the [doctor] has satisfied
[its provisions].” Kolender, supra , at 358 (invalidating a
statute regulating loitering). Respondents’ arguments concerning
arbitrary enforcement, furthermore, are somewhat speculative. This
is a preenforcement challenge, where “no evidence has been, or
could be, introduced to indicate whether the [Act] has been
enforced in a discriminatory manner or with the aim of inhibiting
[constitutionally protected conduct].” Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489 , 503
(1982). The Act is not vague.

															C

															   We next determine whether the Act
imposes an undue burden, as a facial matter, because its
restrictions on second-trimester abortions are too broad. A review
of the statutory text discloses the limits of its reach. The Act
prohibits intact D&E; and, notwithstanding respondents’
arguments, it does not prohibit the D&E procedure in which the
fetus is removed in parts.

															1

															   The Act prohibits a doctor from
intentionally performing an intact D&E. The dual prohibitions
of the Act, both of which are necessary for criminal liability,
correspond with the steps generally undertaken during this type of
procedure. First, a doctor delivers the fetus until its head lodges
in the cervix, which is usually past the anatomical landmark for a
breech presentation. See 18 U. S. C. §1531(b)(1)(A) (2000 ed.,
Supp. IV). Second, the doctor proceeds to pierce the fetal skull
with scissors or crush it with forceps. This step satisfies the
overt-act requirement because it kills the fetus and is distinct
from delivery. See §1531(b)(1)(B). The Act’s intent requirements,
however, limit its reach to those physicians who carry out the
intact D&E after intending to undertake both steps at the
outset.

															   The Act excludes most D&Es in
which the fetus is removed in pieces, not intact. If the doctor
intends to remove the fetus in parts from the outset, the doctor
will not have the requisite intent to incur criminal liability. A
doctor performing a standard D&E procedure can often “tak[e]
about 10–15 ‘passes’ through the uterus to remove the entire
fetus.” Planned Parenthood , 320 F. Supp. 2d, at 962.
Removing the fetus in this manner does not violate the Act because
the doctor will not have delivered the living fetus to one of the
anatomical landmarks or committed an additional overt act that
kills the fetus after partial delivery. §1531(b)(1) (2000 ed.,
Supp. IV).

															   A comparison of the Act with the Nebraska
statute struck down in Stenberg confirms this point. The
statute in Stenberg prohibited “ ‘deliberately and
intentionally delivering into the vagina a living unborn child, or
a substantial portion thereof, for the purpose of performing a
procedure that the person performing such procedure knows will kill
the unborn child and does kill the unborn child.’ ” 530 U. S.,
at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The
Court concluded that this statute encompassed D&E because
“D&E will often involve a physician pulling a ‘substantial
portion’ of a still living fetus, say, an arm or leg, into the
vagina prior to the death of the fetus.” 530 U. S., at 939. The
Court also rejected the limiting interpretation urged by Nebraska’s
Attorney General that the statute’s reference to a “procedure” that
“ ‘kill[s] the unborn child’ ” was to a distinct
procedure, not to the abortion procedure as a whole. Id., at 943.

															   Congress, it is apparent, responded to these
concerns because the Act departs in material ways from the statute
in Stenberg . It adopts the phrase “delivers a living
fetus,” §1531(b)(1)(A) (2000 ed., Supp. IV), instead of
“ ‘delivering . . . a living unborn child, or a substantial
portion thereof,’ ” 530 U. S., at 938 (quoting Neb. Rev. Stat.
Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the
statute in Stenberg , expresses the usual meaning of
“deliver” when used in connection with “fetus,” namely, extraction
of an entire fetus rather than removal of fetal pieces. See
Stedman’s Medical Dictionary 470 (27th ed. 2000) (defining deliver
as “[t]o assist a woman in childbirth” and “[t]o extract from an
enclosed place, as the fetus from the womb, an object or foreign
body”); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni,
The HarperCollins Illustrated Medical Dictionary 160 (4th ed.
2001); Merriam Webster’s Collegiate Dictionary 306 (10th ed. 1997).
The Act thus displaces the interpretation of “delivering” dictated
by the Nebraska statute’s reference to a “substantial portion” of
the fetus. Stenberg, supra , at 944 (indicating that the
Nebraska “statute itself specifies that it applies both to
delivering ‘an intact unborn child’ or ‘a substantial
portion thereof’ ”). In interpreting statutory texts courts
use the ordinary meaning of terms unless context requires a
different result. See, e.g., 2A N. Singer, Sutherland on
Statutes and Statutory Construction §47:28 (rev. 6th ed. 2000).
Here, unlike in Stenberg , the language does not require a
departure from the ordinary meaning. D&E does not involve the
delivery of a fetus because it requires the removal of fetal parts
that are ripped from the fetus as they are pulled through the
cervix.

															   The identification of specific anatomical
landmarks to which the fetus must be partially delivered also
differentiates the Act from the statute at issue in Stenberg . §1531(b)(1)(A) (2000 ed., Supp. IV). The Court
in Stenberg interpreted “ ‘substantial
portion’ ” of the fetus to include an arm or a leg. 530 U. S.,
at 939. The Act’s anatomical landmarks, by contrast, clarify that
the removal of a small portion of the fetus is not prohibited. The
landmarks also require the fetus to be delivered so that it is
partially “outside the body of the mother.” §1531(b)(1)(A). To come
within the ambit of the Nebraska statute, on the other hand, a
substantial portion of the fetus only had to be delivered into the
vagina; no part of the fetus had to be outside the body of the
mother before a doctor could face criminal sanctions. Id., at 938–939.

															   By adding an overt-act requirement Congress
sought further to meet the Court’s objections to the state statute
considered in Stenberg . Compare 18 U. S. C.
§1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev. Stat. Ann.
§28–326(9) (Supp. 1999). The Act makes the distinction the Nebraska
statute failed to draw (but the Nebraska Attorney General advanced)
by differentiating between the overall partial-birth abortion and
the distinct overt act that kills the fetus. See Stenberg ,
530 U. S., at 943–944. The fatal overt act must occur after
delivery to an anatomical landmark, and it must be something “other
than [the] completion of delivery.” §1531(b)(1)(B). This
distinction matters because, unlike intact D&E, standard
D&E does not involve a delivery followed by a fatal act.

															   The canon of constitutional avoidance,
finally, extinguishes any lingering doubt as to whether the Act
covers the prototypical D&E procedure. “ ‘[T]he elementary
rule is that every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.’ ” Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council , 485 U. S. 568 , 575
(1988) (quoting Hooper v. California , 155 U. S. 648 , 657
(1895)). It is true this longstanding maxim of statutory
interpretation has, in the past, fallen by the wayside when the
Court confronted a statute regulating abortion. The Court at times
employed an antagonistic “ ‘canon of construction under which
in cases involving abortion, a permissible reading of a statute
[was] to be avoided at all costs.’ ” Stenberg, supra ,
at 977 (Kennedy, J., dissenting) (quoting Thornburgh , 476
U. S., at 829 (O’Connor, J., dissenting)). Casey put this
novel statutory approach to rest. Stenberg, supra , at 977
(Kennedy, J., dissenting). Stenberg need not be
interpreted to have revived it. We read that decision instead to
stand for the uncontroversial proposition that the canon of
constitutional avoidance does not apply if a statute is not
“genuinely susceptible to two constructions.” Almendarez-Torres v. United States , 523 U. S. 224 , 238
(1998); see also Clark v. Martinez , 543 U. S. 371 , 385
(2005). In Stenberg the Court found the statute covered
D&E. 530 U. S., at 938–945. Here, by contrast, interpreting the
Act so that it does not prohibit standard D&E is the most
reasonable reading and understanding of its terms.

															2

															   Contrary arguments by the
respondents are unavailing. Respondents look to situations that
might arise during D&E, situations not examined in Stenberg . They contend—relying on the testimony of
numerous abortion doctors—that D&E may result in the delivery
of a living fetus beyond the Act’s anatomical landmarks in a
significant fraction of cases. This is so, respondents say, because
doctors cannot predict the amount the cervix will dilate before the
abortion procedure. It might dilate to a degree that the fetus will
be removed largely intact. To complete the abortion, doctors will
commit an overt act that kills the partially delivered fetus.
Respondents thus posit that any D&E has the potential to
violate the Act, and that a physician will not know beforehand
whether the abortion will proceed in a prohibited manner. Brief for
Respondent Planned Parenthood et al. in No. 05–1382,
p. 38.

															   This reasoning, however, does not
take account of the Act’s intent requirements, which preclude
liability from attaching to an accidental intact D&E. If a
doctor’s intent at the outset is to perform a D&E in which the
fetus would not be delivered to either of the Act’s anatomical
landmarks, but the fetus nonetheless is delivered past one of those
points, the requisite and prohibited scienter is not present. 18 U.
S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in
that situation completes an abortion by performing an intact
D&E, the doctor does not violate the Act. It is true that
intent to cause a result may sometimes be inferred if a person
“knows that that result is practically certain to follow from his
conduct.” 1 LaFave §5.2(a), at 341. Yet abortion doctors intending
at the outset to perform a standard D&E procedure will not know
that a prohibited abortion “is practically certain to follow from”
their conduct. Ibid. A fetus is only delivered largely
intact in a small fraction of the overall number of D&E
abortions. Planned Parenthood , 320 F. Supp. 2d, at
965.

															   The evidence also supports a legislative
determination that an intact delivery is almost always a conscious
choice rather than a happenstance. Doctors, for example, may remove
the fetus in a manner that will increase the chances of an intact
delivery. See, e.g., App. in No. 05–1382, at 74, 452. And
intact D&E is usually described as involving some manner of
serial dilation. See, e.g., Dilation and Extraction 110.
Doctors who do not seek to obtain this serial dilation perform an
intact D&E on far fewer occasions. See, e.g., Carhart , 331 F. Supp. 2d, at 857–858 (“In order for
intact removal to occur on a regular basis, Dr. Fitzhugh would have
to dilate his patients with a second round of laminaria”). This
evidence belies any claim that a standard D&E cannot be
performed without intending or foreseeing an intact D&E.

															   Many doctors who testified on behalf of
respondents, and who objected to the Act, do not perform an intact
D&E by accident. On the contrary, they begin every D&E
abortion with the objective of removing the fetus as intact as
possible. See, e.g., id., at 869 (“Since Dr. Chasen
believes that the intact D & E is safer than the dismemberment
D & E, Dr. Chasen’s goal is to perform an intact D & E
every time”); see also id., at 873, 886. This does not
prove, as respondents suggest, that every D&E might violate the
Act and that the Act therefore imposes an undue burden. It
demonstrates only that those doctors who intend to perform a
D&E that would involve delivery of a living fetus to one of the
Act’s anatomical landmarks must adjust their conduct to the law by
not attempting to deliver the fetus to either of those points.
Respondents have not shown that requiring doctors to intend
dismemberment before delivery to an anatomical landmark will
prohibit the vast majority of D&E abortions. The Act, then,
cannot be held invalid on its face on these grounds.

															IV

															   Under the principles accepted as
controlling here, the Act, as we have interpreted it, would be
unconstitutional “if its purpose or effect is to place a
substantial obstacle in the path of a woman seeking an abortion
before the fetus attains viability.” Casey , 505 U. S., at
878 (plurality opinion). The abortions affected by the Act’s
regulations take place both previability and postviability; so the
quoted language and the undue burden analysis it relies upon are
applicable. The question is whether the Act, measured by its text
in this facial attack, imposes a substantial obstacle to late-term,
but previability, abortions. The Act does not on its face impose a
substantial obstacle, and we reject this further facial challenge
to its validity.

															A

															   The Act’s purposes are set forth
in recitals preceding its operative provisions. A description of
the prohibited abortion procedure demonstrates the rationale for
the congressional enactment. The Act proscribes a method of
abortion in which a fetus is killed just inches before completion
of the birth process. Congress stated as follows: “Implicitly
approving such a brutal and inhumane procedure by choosing not to
prohibit it will further coarsen society to the humanity of not
only newborns, but all vulnerable and innocent human life, making
it increasingly difficult to protect such life.” Congressional
Findings (14)(N), in notes following 18 U. S. C. §1531 (2000
ed., Supp. IV), p. 769. The Act expresses respect for the dignity
of human life.

															   Congress was concerned,
furthermore, with the effects on the medical community and on its
reputation caused by the practice of partial-birth abortion. The
findings in the Act explain:

															“Partial-birth abortion … confuses the medical,
legal, and ethical duties of physicians to preserve and promote
life, as the physician acts directly against the physical life of a
child, whom he or she had just delivered, all but the head, out of
the womb, in order to end that life.” Congressional Findings
(14)(J), ibid. There can be no doubt the government “has an
interest in protecting the integrity and ethics of the medical
profession.” Washington v. Glucksberg , 521 U. S. 702 , 731
(1997); see also Barsky v. Board of Regents of Univ.
of N. Y. , 347
U. S. 442 , 451 (1954) (indicating the State has “legitimate
concern for maintaining high standards of professional conduct” in
the practice of medicine). Under our precedents it is clear the
State has a significant role to play in regulating the medical
profession. Casey reaffirmed these governmental
objectives. The government may use its voice and its regulatory
authority to show its profound respect for the life within the
woman. A central premise of the opinion was that the Court’s
precedents after Roe had “undervalue[d] the State’s
interest in potential life.” 505 U. S., at 873 (plurality opinion);
see also id., at 871. The plurality opinion indicated
“[t]he fact that a law which serves a valid purpose, one not
designed to strike at the right itself, has the incidental effect
of making it more difficult or more expensive to procure an
abortion cannot be enough to invalidate it.” Id., at 874.
This was not an idle assertion. The three premises of Casey must coexist. See id., at 846 (opinion of
the Court). The third premise, that the State, from the inception
of the pregnancy, maintains its own regulatory interest in
protecting the life of the fetus that may become a child, cannot be
set at naught by interpreting Casey ’s requirement of a
health exception so it becomes tantamount to allowing a doctor to
choose the abortion method he or she might prefer. Where it has a
rational basis to act, and it does not impose an undue burden, the
State may use its regulatory power to bar certain procedures and
substitute others, all in furtherance of its legitimate interests
in regulating the medical profession in order to promote respect
for life, including life of the unborn.

															   The Act’s ban on abortions that involve
partial delivery of a living fetus furthers the Government’s
objectives. No one would dispute that, for many, D&E is a
procedure itself laden with the power to devalue human life.
Congress could nonetheless conclude that the type of abortion
proscribed by the Act requires specific regulation because it
implicates additional ethical and moral concerns that justify a
special prohibition. Congress determined that the abortion methods
it proscribed had a “disturbing similarity to the killing of a
newborn infant,” Congressional Findings (14)(L), in notes following
18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it
was concerned with “draw[ing] a bright line that clearly
distinguishes abortion and infanticide.” Congressional Findings
(14)(G), ibid. The Court has in the past confirmed the
validity of drawing boundaries to prevent certain practices that
extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State’s “fear that
permitting assisted suicide will start it down the path to
voluntary and perhaps even involuntary euthanasia.” 521 U. S., at
732–735, and n. 23.

															   Respect for human life finds an ultimate
expression in the bond of love the mother has for her child. The
Act recognizes this reality as well. Whether to have an abortion
requires a difficult and painful moral decision. Casey,
supra , at 852–853 (opinion of the Court). While we find no
reliable data to measure the phenomenon, it seems unexceptionable
to conclude some women come to regret their choice to abort the
infant life they once created and sustained. See Brief for Sandra
Cano et al. as Amici Curiae in No. 05–380, pp. 22–24.
Severe depression and loss of esteem can follow. See ibid. In a decision so fraught with emotional
consequence some doctors may prefer not to disclose precise details
of the means that will be used, confining themselves to the
required statement of risks the procedure entails. From one
standpoint this ought not to be surprising. Any number of patients
facing imminent surgical procedures would prefer not to hear all
details, lest the usual anxiety preceding invasive medical
procedures become the more intense. This is likely the case with
the abortion procedures here in issue. See, e.g., Nat.
Abortion Federation , 330 F. Supp. 2d, at 466, n. 22
(“Most of [the plaintiffs’] experts acknowledged that they do not
describe to their patients what [the D&E and intact D&E]
procedures entail in clear and precise terms”); see also id., at 479.

															   It is, however, precisely this lack of
information concerning the way in which the fetus will be killed
that is of legitimate concern to the State. Casey, supra ,
at 873 (plurality opinion) (“States are free to enact laws to
provide a reasonable framework for a woman to make a decision that
has such profound and lasting meaning”). The State has an interest
in ensuring so grave a choice is well informed. It is self-evident
that a mother who comes to regret her choice to abort must struggle
with grief more anguished and sorrow more profound when she learns,
only after the event, what she once did not know: that she allowed
a doctor to pierce the skull and vacuum the fast-developing brain
of her unborn child, a child assuming the human form.

															   It is a reasonable inference that a necessary
effect of the regulation and the knowledge it conveys will be to
encourage some women to carry the infant to full term, thus
reducing the absolute number of late-term abortions. The medical
profession, furthermore, may find different and less shocking
methods to abort the fetus in the second trimester, thereby
accommodating legislative demand. The State’s interest in respect
for life is advanced by the dialogue that better informs the
political and legal systems, the medical profession, expectant
mothers, and society as a whole of the consequences that follow
from a decision to elect a late-term abortion.

															   It is objected that the standard D&E is in
some respects as brutal, if not more, than the intact D&E, so
that the legislation accomplishes little. What we have already
said, however, shows ample justification for the regulation.
Partial-birth abortion, as defined by the Act, differs from a
standard D&E because the former occurs when the fetus is
partially outside the mother to the point of one of the Act’s
anatomical landmarks. It was reasonable for Congress to think that
partial-birth abortion, more than standard D&E, “undermines the
public’s perception of the appropriate role of a physician during
the delivery process, and perverts a process during which life is
brought into the world.” Congressional Findings (14)(K), in notes
following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769.
There would be a flaw in this Court’s logic, and an irony in its
jurisprudence, were we first to conclude a ban on both D&E and
intact D&E was overbroad and then to say it is irrational to
ban only intact D&E because that does not proscribe both
procedures. In sum, we reject the contention that the congressional
purpose of the Act was “to place a substantial obstacle in the path
of a woman seeking an abortion.” 505 U. S., at 878 (plurality
opinion).

															B

															   The Act’s furtherance of
legitimate government interests bears upon, but does not resolve,
the next question: whether the Act has the effect of imposing an
unconstitutional burden on the abortion right because it does not
allow use of the barred procedure where “ ‘necessary, in
appropriate medical judgment, for [the] preservation of the …
health of the mother.’ ” Ayotte , 546 U. S., at
327–328 (quoting Casey, supra , at 879 (plurality
opinion)). The prohibition in the Act would be unconstitutional,
under precedents we here assume to be controlling, if it
“subject[ed] [women] to significant health risks.” Ayotte,
supra , at 328; see also Casey, supra , at 880 (opinion
of the Court). In Ayotte the parties agreed a health
exception to the challenged parental-involvement statute was
necessary “to avert serious and often irreversible damage to [a
pregnant minor’s] health.” 546 U. S., at 328. Here, by contrast,
whether the Act creates significant health risks for women has been
a contested factual question. The evidence presented in the trial
courts and before Congress demonstrates both sides have medical
support for their position.

															   Respondents presented evidence
that intact D&E may be the safest method of abortion, for
reasons similar to those adduced in Stenberg . See 530 U.
S., at 932. Abortion doctors testified, for example, that intact
D&E decreases the risk of cervical laceration or uterine
perforation because it requires fewer passes into the uterus with
surgical instruments and does not require the removal of bony
fragments of the dismembered fetus, fragments that may be sharp.
Respondents also presented evidence that intact D&E was safer
both because it reduces the risks that fetal parts will remain in
the uterus and because it takes less time to complete. Respondents,
in addition, proffered evidence that intact D&E was safer for
women with certain medical conditions or women with fetuses that
had certain anomalies. See, e.g., Carhart , 331
F. Supp. 2d, at 923–929; Nat. Abortion Federation,
supra , at 470–474; Planned Parenthood , 320
F. Supp. 2d, at 982–983.

															   These contentions were contradicted by other
doctors who testified in the District Courts and before Congress.
They concluded that the alleged health advantages were based on
speculation without scientific studies to support them. They
considered D&E always to be a safe alternative. See, e.g., Carhart, supra , at 930–940; Nat.
Abortion Federation , 330 F. Supp. 2d, at 470–474; Planned Parenthood , 320 F. Supp. 2d, at 983.

															   There is documented medical disagreement
whether the Act’s prohibition would ever impose significant health
risks on women. See, e.g., id., at 1033 (“[T]here
continues to be a division of opinion among highly qualified
experts regarding the necessity or safety of intact D & E”);
see also Nat. Abortion Federation, supra , at 482. The
three District Courts that considered the Act’s constitutionality
appeared to be in some disagreement on this central factual
question. The District Court for the District of Nebraska concluded
“the banned procedure is, sometimes, the safest abortion procedure
to preserve the health of women.” Carhart, supra , at 1017.
The District Court for the Northern District of California reached
a similar conclusion. Planned Parenthood, supra , at 1002
(finding intact D&E was “under certain circumstances …
significantly safer than D & E by disarticulation”). The
District Court for the Southern District of New York was more
skeptical of the purported health benefits of intact D&E. It
found the Attorney General’s “expert witnesses reasonably and
effectively refuted [the plaintiffs’] proffered bases for the
opinion that [intact D&E] has safety advantages over other
second-trimester abortion procedures.” Nat. Abortion
Federation , 330 F. Supp. 2d, at 479. In addition it did
“not believe that many of [the plaintiffs’] purported reasons for
why [intact D&E] is medically necessary [were] credible; rather
[it found them to be] theoretical or false.” Id., at 480.
The court nonetheless invalidated the Act because it determined “a
significant body of medical opinion … holds that D & E has
safety advantages over induction and that [intact D&E] has some
safety advantages (however hypothetical and unsubstantiated by
scientific evidence) over D & E for some women in some
circumstances.” Ibid. The question becomes whether the Act can stand
when this medical uncertainty persists. The Court’s precedents
instruct that the Act can survive this facial attack. The Court has
given state and federal legislatures wide discretion to pass
legislation in areas where there is medical and scientific
uncertainty. See Kansas v. Hendricks , 521 U. S. 346 , 360, n. 3
(1997); Jones v. United States , 463 U. S. 354 , 364–365,
n. 13, 370 (1983); Lambert v. Yellowley , 272 U. S. 581 , 597
(1926); Collins v. Texas , 223 U. S. 288 , 297–298
(1912); Jacobson v. Massachusetts , 197 U. S. 11 , 30–31
(1905); see also Stenberg, supra , at 969–972 (Kennedy, J.,
dissenting); Marshall v. United States , 414 U. S. 417 , 427
(1974) (“When Congress undertakes to act in areas fraught with
medical and scientific uncertainties, legislative options must be
especially broad”).

															   This traditional rule is consistent with Casey , which confirms the State’s interest in promoting
respect for human life at all stages in the pregnancy. Physicians
are not entitled to ignore regulations that direct them to use
reasonable alternative procedures. The law need not give abortion
doctors unfettered choice in the course of their medical practice,
nor should it elevate their status above other physicians in the
medical community. In Casey the controlling opinion held
an informed-consent requirement in the abortion context was “no
different from a requirement that a doctor give certain specific
information about any medical procedure.” 505 U. S., at 884 (joint
opinion). The opinion stated “the doctor-patient relation here is
entitled to the same solicitude it receives in other contexts.” Ibid.; see also Webster v. Reproductive
Health Services , 492 U. S. 490 , 518–519
(1989) (plurality opinion) (criticizing Roe ’s trimester
framework because, inter alia, it “left this Court to
serve as the country’s ex officio medical board with
powers to approve or disapprove medical and operative practices and
standards throughout the United States” (internal quotation marks
omitted)); Mazurek v. Armstrong , 520 U. S. 968 , 973
(1997) (per curiam) (upholding a restriction on the
performance of abortions to licensed physicians despite the
respondents’ contention “all health evidence contradicts the claim
that there is any health basis for the law” (internal quotation
marks omitted)).

															   Medical uncertainty does not foreclose the
exercise of legislative power in the abortion context any more than
it does in other contexts. See Hendricks, supra , at 360,
n. 3. The medical uncertainty over whether the Act’s
prohibition creates significant health risks provides a sufficient
basis to conclude in this facial attack that the Act does not
impose an undue burden.

															   The conclusion that the Act does not impose an
undue burden is supported by other considerations. Alternatives are
available to the prohibited procedure. As we have noted, the Act
does not proscribe D&E. One District Court found D&E to
have extremely low rates of medical complications. Planned
Parenthood, supra , at 1000. Another indicated D&E was
“generally the safest method of abortion during the second
trimester.” Carhart , 331 F. Supp. 2d, at 1031; see
also Nat. Abortion Federation, supra , at 467–468
(explaining that “[e]xperts testifying for both sides” agreed
D&E was safe). In addition the Act’s prohibition only applies
to the delivery of “a living fetus.” 18 U. S. C.
§1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E
procedure is truly necessary in some circumstances, it appears
likely an injection that kills the fetus is an alternative under
the Act that allows the doctor to perform the procedure.

															   The instant cases, then, are different from Planned Parenthood of Central Mo. v. Danforth , 428 U. S. 52 ,
77–79 (1976), in which the Court invalidated a ban on saline
amniocentesis, the then-dominant second-trimester abortion method.
The Court found the ban in Danforth to be “an unreasonable
or arbitrary regulation designed to inhibit, and having the effect
of inhibiting, the vast majority of abortions after the first 12
weeks.” Id., at 79. Here the Act allows, among other
means, a commonly used and generally accepted method, so it does
not construct a substantial obstacle to the abortion right.

															   In reaching the conclusion the Act does not
require a health exception we reject certain arguments made by the
parties on both sides of these cases. On the one hand, the Attorney
General urges us to uphold the Act on the basis of the
congressional findings alone. Brief for Petitioner in No. 05–380,
at 23. Although we review congressional factfinding under a
deferential standard, we do not in the circumstances here place
dispositive weight on Congress’ findings. The Court retains an
independent constitutional duty to review factual findings where
constitutional rights are at stake. See Crowell v. Benson , 285
U. S. 22 , 60 (1932) (“In cases brought to enforce
constitutional rights, the judicial power of the United States
necessarily extends to the independent determination of all
questions, both of fact and law, necessary to the performance of
that supreme function”).

															   As respondents have noted, and the District
Courts recognized, some recitations in the Act are factually
incorrect. See Nat. Abortion Federation , 330 F. Supp.
2d, at 482, 488–491. Whether or not accurate at the time, some of
the important findings have been superseded. Two examples suffice.
Congress determined no medical schools provide instruction on the
prohibited procedure. Congressional Findings (14)(B), in notes
following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The
testimony in the District Courts, however, demonstrated intact
D&E is taught at medical schools. Nat. Abortion Federation,
supra , at 490; Planned Parenthood , 320 F. Supp.
2d, at 1029. Congress also found there existed a medical consensus
that the prohibited procedure is never medically necessary.
Congressional Findings (1), in notes following 18 U. S. C.
§1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the
District Courts contradicts that conclusion. See, e.g., Carhart, supra , at 1012–1015; Nat. Abortion
Federation, supra , at 488–489; Planned Parenthood,
supra , at 1025–1026. Uncritical deference to Congress’ factual
findings in these cases is inappropriate.

															   On the other hand, relying on the Court’s
opinion in Stenberg , respondents contend that an abortion
regulation must contain a health exception “if ‘substantial medical
authority supports the proposition that banning a particular
procedure could endanger women’s health.’ ” Brief for
Respondents in No. 05–380, p. 19 (quoting 530 U. S., at 938); see
also Brief for Respondent Planned Parenthood et al. in No.
05–1382, at 12 (same). As illustrated by respondents’ arguments and
the decisions of the Courts of Appeals, Stenberg has been
interpreted to leave no margin of error for legislatures to act in
the face of medical uncertainty. Carhart , 413 F. 3d,
at 796; Planned Parenthood , 435 F. 3d, at 1173; see
also Nat. Abortion Federation , 437 F. 3d, at 296
(Walker, C. J., concurring) (explaining the standard under Stenberg “is a virtually insurmountable evidentiary
hurdle”).

															   A zero tolerance policy would strike down
legitimate abortion regulations, like the present one, if some part
of the medical community were disinclined to follow the
proscription. This is too exacting a standard to impose on the
legislative power, exercised in this instance under the Commerce
Clause, to regulate the medical profession. Considerations of
marginal safety, including the balance of risks, are within the
legislative competence when the regulation is rational and in
pursuit of legitimate ends. When standard medical options are
available, mere convenience does not suffice to displace them; and
if some procedures have different risks than others, it does not
follow that the State is altogether barred from imposing reasonable
regulations. The Act is not invalid on its face where there is
uncertainty over whether the barred procedure is ever necessary to
preserve a woman’s health, given the availability of other abortion
procedures that are considered to be safe alternatives.

															V

															   The considerations we have
discussed support our further determination that these facial
attacks should not have been entertained in the first instance. In
these circumstances the proper means to consider exceptions is by
as-applied challenge. The Government has acknowledged that
preenforcement, as-applied challenges to the Act can be maintained.
Tr. of Oral Arg. in No. 05–380, pp. 21–23. This is the proper
manner to protect the health of the woman if it can be shown that
in discrete and well-defined instances a particular condition has
or is likely to occur in which the procedure prohibited by the Act
must be used. In an as-applied challenge the nature of the medical
risk can be better quantified and balanced than in a facial
attack.

															   The latitude given facial
challenges in the First Amendment context is inapplicable here.
Broad challenges of this type impose “a heavy burden” upon the
parties maintaining the suit. Rust v. Sullivan , 500 U. S. 173 ,
183 (1991). What that burden consists of in the specific context of
abortion statutes has been a subject of some question. Compare Ohio v. Akron Center for Reproductive Health , 497 U. S. 502 ,
514 (1990) (“[B]ecause appellees are making a facial challenge to a
statute, they must show that no set of circumstances exists under
which the Act would be valid” (internal quotation marks omitted)),
with Casey , 505 U. S., at 895 (opinion of the Court)
(indicating a spousal-notification statute would impose an undue
burden “in a large fraction of the cases in which [it] is relevant”
and holding the statutory provision facially invalid). See also Janklow v. Planned Parenthood, Sioux Falls
Clinic , 517 U.
S. 1174 (1996). We need not resolve that debate.

															   As the previous sections of this opinion
explain, respondents have not demonstrated that the Act would be
unconstitutional in a large fraction of relevant cases. Casey,
supra , at 895 (opinion of the Court). We note that the statute
here applies to all instances in which the doctor proposes to use
the prohibited procedure, not merely those in which the woman
suffers from medical complications. It is neither our obligation
nor within our traditional institutional role to resolve questions
of constitutionality with respect to each potential situation that
might develop. “[I]t would indeed be undesirable for this Court to
consider every conceivable situation which might possibly arise in
the application of complex and comprehensive legislation.” United States v. Raines , 362 U. S. 17 , 21 (1960)
(internal quotation marks omitted). For this reason, “[a]s-applied
challenges are the basic building blocks of constitutional
adjudication.” Fallon, As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000).

															   The Act is open to a proper as-applied
challenge in a discrete case. Cf. Wisconsin Right to Life,
Inc. v. Federal Election Comm’n , 546 U. S. 410 , 411–412
(2006) (per curiam) . No as-applied challenge need be
brought if the prohibition in the Act threatens a woman’s life
because the Act already contains a life exception. 18 U. S. C.
§1531(a) (2000 ed., Supp. IV).

															*  *  *

															   Respondents have not demonstrated
that the Act, as a facial matter, is void for vagueness, or that it
imposes an undue burden on a woman’s right to abortion based on its
overbreadth or lack of a health exception. For these reasons the
judgments of the Courts of Appeals for the Eighth and Ninth
Circuits are reversed.

															It is so ordered. 550 U. S. ____ (2007) GONZALES V. CARHART 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-380 AND 05-1382 ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER

															05–380 v. LEROY CARHART et al. on writ of certiorari to the united states
court of appeals for the eighth circuit ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER 05–1382   v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.,
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit [April 18, 2007] Justice Thomas , with
whom Justice Scalia joins, concurring.

															   I join the Court’s opinion
because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 (1992). I write separately to reiterate my view that the Court’s
abortion jurisprudence, including Casey and Roe v. Wade , 410 U. S. 113 (1973),
has no basis in the Constitution. See Casey , supra , at 979 (Scalia, J., concurring in judgment in part
and dissenting in part); Stenberg v. Carhart , 530 U. S. 914 ,
980–983 (2000) (Thomas, J., dissenting). I also note that whether
the Act constitutes a permissible exercise of Congress’ power under
the Commerce Clause is not before the Court. The parties did not
raise or brief that issue; it is outside the question presented;
and the lower courts did not address it. See Cutter v. Wilkinson , 544 U. S. 709 , 727,
n. 2 (2005) (Thomas, J., concurring). GINSBURG, J., DISSENTING GONZALES V. CARHART 550 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-380 AND 05-1382 ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER

															05–380 v. LEROY CARHART et al. on writ of certiorari to the united states
court of appeals for the eighth circuit ALBERTO R. GONZALES, ATTORNEY GENERAL,
PETITIONER 05–1382   v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.,
et al. on writ of certiorari to the united states
court of appeals for the ninth circuit [April 18, 2007] Justice Ginsburg , with
whom Justice Stevens, Justice Souter, and Justice Breyer join,
dissenting.

															   In Planned Parenthood of
Southeastern Pa. v. Casey , 505 U. S. 833 , 844 (1992), the Court
declared that “[l]iberty finds no refuge in a jurisprudence of
doubt.” There was, the Court said, an “imperative” need to dispel
doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment,
rendered nearly two decades earlier in Roe v. Wade , 410
U. S. 113 (1973). 505 U. S., at 845. Responsive to that need,
the Court endeavored to provide secure guidance to “[s]tate and
federal courts as well as legislatures throughout the Union,” by
defining “the rights of the woman and the legitimate authority of
the State respecting the termination of pregnancies by abortion
procedures.” Ibid .

															   Taking care to speak plainly, the Casey Court restated and reaffirmed Roe ’s
essential holding. 505 U. S., at 845–846. First, the Court
addressed the type of abortion regulation permissible prior to
fetal viability. It recognized “the right of the woman to choose to
have an abortion before viability and to obtain it without undue
interference from the State.” Id ., at 846. Second, the
Court acknowledged “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 .” Ibid . (emphasis added). Third, the Court confirmed that
“the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the
life of the fetus that may become a child.” Ibid .
(emphasis added).

															   In reaffirming Roe , the Casey Court described the centrality of “the decision
whether to bear . . . a child,” Eisenstadt v. Baird , 405
U. S. 438 , 453 (1972), to a woman’s “dignity and autonomy,” her
“personhood” and “destiny,” her “conception of . . . her place in
society.” 505 U. S., at 851–852. Of signal importance here, the Casey Court stated with unmistakable clarity that state
regulation of access to abortion procedures, even after viability,
must protect “the health of the woman.” Id., at 846.

															   Seven years ago, in Stenberg v. Carhart , 530
U. S. 914 (2000), the Court invalidated a Nebraska statute
criminalizing the performance of a medical procedure that, in the
political arena, has been dubbed “partial-birth abortion.”[ Footnote 1 ] With fidelity to the Roe - Casey line of precedent, the Court held the
Nebraska statute unconstitutional in part because it lacked the
requisite protection for the preservation of a woman’s health. Stenberg , 530 U. S., at 930; cf. Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320 , 327
(2006).

															   Today’s decision is alarming. It refuses to
take Casey and Stenberg seriously. It tolerates,
indeed applauds, federal intervention to ban nationwide a procedure
found necessary and proper in certain cases by the American College
of Obstetricians and Gynecologists (ACOG). It blurs the line,
firmly drawn in Casey , between previability and
postviability abortions. And, for the first time since Roe , the Court blesses a prohibition with no exception
safeguarding a woman’s health.

															   I dissent from the Court’s disposition.
Retreating from prior rulings that abortion restrictions cannot be
imposed absent an exception safeguarding a woman’s health, the
Court upholds an Act that surely would not survive under the close
scrutiny that previously attended state-decreed limitations on a
woman’s reproductive choices.

															I

															A As Casey comprehended, at stake in cases challenging abortion restrictions
is a woman’s “control over her [own] destiny.” 505 U. S., at 869
(plurality opinion). See also id ., at 852 (majority
opinion).[ Footnote 2 ] “There
was a time, not so long ago,” when women were “regarded as the
center of home and family life, with attendant special
responsibilities that precluded full and independent legal status
under the Constitution.” Id ., at 896–897 (quoting Hoyt v. Florida , 368 U. S. 57 , 62 (1961)).
Those views, this Court made clear in Casey , “are no
longer consistent with our understanding of the family, the
individual, or the Constitution.” 505 U. S., at 897. Women, it is
now acknowledged, have the talent, capacity, and right “to
participate equally in the economic and social life of the Nation.” Id ., at 856. Their ability to realize their full
potential, the Court recognized, is intimately connected to “their
ability to control their reproductive lives.” Ibid . Thus,
legal challenges to undue restrictions on abortion procedures do
not seek to vindicate some generalized notion of privacy; rather,
they center on a woman’s autonomy to determine her life’s course,
and thus to enjoy equal citizenship stature. See, e.g. ,
Siegel, Reasoning from the Body: A Historical Perspective on
Abortion Regulation and Questions of Equal Protection, 44 Stan.
L. Rev. 261 (1992); Law, Rethinking Sex and the Constitution,
132 U. Pa. L. Rev. 955, 1002–1028 (1984). In
keeping with this comprehension of the right to reproductive
choice, the Court has consistently required that laws regulating
abortion, at any stage of pregnancy and in all cases, safeguard a
woman’s health. See, e.g. , Ayotte ,
546 U. S., at 327–328 (“[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
[woman].” (quoting Casey , 505 U. S., at 879 (plurality
opinion))); Stenberg , 530 U. S., at 930 (“Since the law
requires a health exception in order to validate even a
postviability abortion regulation, it at a minimum requires the
same in respect to previability regulation.”). See also Thornburgh v. American College of Obstetricians and
Gynecologists , 476 U. S. 747 , 768–769
(1986) (invalidating a post -viability abortion regulation
for “fail[ure] to require that [a pregnant woman’s] health be the
physician’s paramount consideration”). We have
thus ruled that a State must avoid subjecting women to health risks
not only where the pregnancy itself creates danger, but also where
state regulation forces women to resort to less safe methods of
abortion. See Planned Parenthood of Central Mo. v. Danforth , 428 U. S. 52 , 79 (1976)
(holding unconstitutional a ban on a method of abortion that
“force[d] a woman … to terminate her pregnancy by methods more
dangerous to her health”). See also Stenberg , 530 U. S.,
at 931 (“[Our cases] make clear that a risk to . . . women’s health
is the same whether it happens to arise from regulating a
particular method of abortion, or from barring abortion
entirely.”). Indeed, we have applied the rule that abortion
regulation must safeguard a woman’s health to the particular
procedure at issue here—intact dilation and evacuation
(D&E).[ Footnote
3 ] In Stenberg , we expressly held that a statute banning intact
D&E was unconstitutional in part because it lacked a health
exception. 530 U. S., at 930, 937. We noted that there existed a
“division of medical opinion” about the relative safety of intact
D&E, id ., at 937, but we made clear that as long as
“substantial medical authority supports the proposition that
banning a particular abortion procedure could endanger women’s
health,” a health exception is required, id ., at 938. We
explained: “The word ‘necessary’ in Casey ’s
phrase ‘necessary, in appropriate medical judgment, for the
preservation of the life or health of the [pregnant woman],’ cannot
refer to an absolute necessity or to absolute proof. Medical
treatments and procedures are often considered appropriate (or
inappropriate) in light of estimated comparative health risks (and
health benefits) in particular cases. Neither can that phrase
require unanimity of medical opinion. Doctors often differ in their
estimation of comparative health risks and appropriate treatment.
And Casey’ s words ‘appropriate medical judgment’ must
embody the judicial need to tolerate responsible differences of
medical opinion … .” Id ., at 937 (citation
omitted). Thus, we
reasoned, division in medical opinion “at most means uncertainty, a
factor that signals the presence of risk, not its absence.” Ibid . “[A] statute that altogether forbids [intact
D&E] . . . . consequently must contain a health exception.” Id ., at 938. See also id ., at 948 (O’Connor, J.,
concurring) (“Th[e] lack of a health exception necessarily renders
the statute unconstitutional.”). B In 2003, a few years after our ruling in Stenberg , Congress passed the Partial-Birth Abortion Ban
Act—without an exception for women’s health. See 18 U. S. C.
§1531(a) (2000 ed., Supp. IV).[ Footnote 4 ] The congressional findings on which the
Partial-Birth Abortion Ban Act rests do not withstand inspection,
as the lower courts have determined and this Court is obliged to
concede. Ante , at 35–36. See National Abortion
Federation v. Ashcroft , 330 F. Supp. 2d 436, 482
(SDNY 2004) (“Congress did not … carefully consider the evidence
before arriving at its findings.”), aff’d sub nom. National Abortion Federation v. Gonzales , 437
F. 3d 278 (CA2 2006). See also Planned Parenthood
Federation of Am. v. Ashcroft , 320 F. Supp. 2d
957, 1019 (ND Cal. 2004) (“[N]one of the six physicians who
testified before Congress had ever performed an intact D&E.
Several did not provide abortion services at all; and one was not
even an obgyn… . [T]he oral testimony before Congress was not
only unbalanced, but intentionally polemic.”), aff’d, 435
F. 3d 1163 (CA9 2006); Carhart v. Ashcroft ,
331 F. Supp. 2d 805, 1011 (Neb. 2004) (“Congress arbitrarily
relied upon the opinions of doctors who claimed to have no (or very
little) recent and relevant experience with surgical abortions, and
disregarded the views of doctors who had significant and relevant
experience with those procedures.”), aff’d, 413 F. 3d 791 (CA8
2005). Many of the Act’s recitations are
incorrect. See ante , at 35–36. For example, Congress
determined that no medical schools provide instruction on intact
D&E. §2(14)(B), 117 Stat. 1204, notes following 18 U.
S. C. §1531 (2000 ed., Supp. IV), p. 769, ¶(14)(B)
(Congressional Findings). But in fact, numerous leading medical
schools teach the procedure. See Planned Parenthood , 320
F. Supp. 2d, at 1029; National Abortion Federation ,
330 F. Supp. 2d, at 479. See also Brief for ACOG as Amicus
Curiae 18 (“Among the schools that now teach the intact
variant are Columbia, Cornell, Yale, New York University,
Northwestern, University of Pittsburgh, University of Pennsylvania,
University of Rochester, and University of
Chicago.”). More important, Congress claimed there was a
medical consensus that the banned procedure is never necessary.
Congressional Findings (1), in notes following 18 U. S. C.
§1531 (2000 ed., Supp. IV), p. 767. But the evidence “very
clearly demonstrate[d] the opposite.” Planned Parenthood ,
320 F. Supp. 2d, at 1025. See also Carhart , 331
F. Supp. 2d, at 1008–1009 (“[T]here was no evident consensus
in the record that Congress compiled. There was, however, a
substantial body of medical opinion presented to Congress in
opposition. If anything … the congressional record establishes that
there was a ‘consensus’ in favor of the banned procedure.”); National Abortion Federation , 330 F. Supp. 2d, at 488
(“The congressional record itself undermines [Congress’] finding”
that there is a medical consensus that intact D&E “is never
medically necessary and should be prohibited.” (internal quotation
marks omitted)). Similarly, Congress found that “[t]here is no
credible medical evidence that partial-birth abortions are safe or
are safer than other abortion procedures.” Congressional Findings
(14)(B), in notes following 18 U. S. C. §1531 (2000 ed., Supp.
IV), p. 769. But the congressional record includes letters
from numerous individual physicians stating that pregnant women’s
health would be jeopardized under the Act, as well as statements
from nine professional associations, including ACOG, the American
Public Health Association, and the California Medical Association,
attesting that intact D&E carries meaningful safety advantages
over other methods. See National Abortion Federation , 330
F. Supp. 2d, at 490. See also Planned Parenthood , 320
F. Supp. 2d, at 1021 (“Congress in its findings . . . chose to
disregard the statements by ACOG and other medical
organizations.”). No comparable medical groups supported the ban.
In fact, “all of the government’s own witnesses disagreed with many
of the specific congressional findings.” Id., at
1024. C In contrast to Congress, the
District Courts made findings after full trials at which all
parties had the opportunity to present their best evidence. The
courts had the benefit of “much more extensive medical and
scientific evidence . . . concerning the safety and necessity of
intact D&Es.” Planned Parenthood , 320 F. Supp.
2d, at 1014; cf. National Abortion Federation , 330
F. Supp. 2d, at 482 (District Court “heard more evidence
during its trial than Congress heard over the span of eight
years.”). During the District Court
trials, “numerous” “extraordinarily accomplished” and “very
experienced” medical experts explained that, in certain
circumstances and for certain women, intact D&E is safer than
alternative procedures and necessary to protect women’s health. Carhart , 331 F. Supp. 2d, at 1024–1027; see Planned Parenthood , 320 F. Supp. 2d, at 1001 (“[A]ll
of the doctors who actually perform intact D&Es concluded that
in their opinion and clinical judgment, intact D&Es remain the
safest option for certain individual women under certain individual
health circumstances, and are significantly safer for these women
than other abortion techniques, and are thus medically
necessary.”); cf. ante , at 31 (“Respondents presented
evidence that intact D&E may be the safest method of abortion,
for reasons similar to those adduced in Stenberg .”). According to the expert testimony plaintiffs
introduced, the safety advantages of intact D&E are marked for
women with certain medical conditions, for example, uterine
scarring, bleeding disorders, heart disease, or compromised immune
systems. See Carhart , 331 F. Supp. 2d, at 924–929,
1026–1027; National Abortion Federation , 330 F. Supp.
2d, at 472–473; Planned Parenthood , 320 F. Supp. 2d,
at 992–994, 1001. Further, plaintiffs’ experts
testified that intact D&E is significantly safer for women with
certain pregnancy-related conditions, such as placenta previa and
accreta, and for women carrying fetuses with certain abnormalities,
such as severe hydrocephalus. See Carhart , 331
F. Supp. 2d, at 924, 1026–1027; National Abortion
Federation , 330 F. Supp. 2d, at 473–474; Planned
Parenthood , 320 F. Supp. 2d, at 992–994, 1001. See also Stenberg , 530 U. S., at 929; Brief for ACOG as Amicus Curiae 2,
13–16. Intact D&E,
plaintiffs’ experts explained, provides safety benefits over
D&E by dismemberment for several reasons: First ,
intact D&E minimizes the number of times a physician must
insert instruments through the cervix and into the uterus, and
thereby reduces the risk of trauma to, and perforation of, the
cervix and uterus—the most serious complication associated with
nonintact D&E. See Carhart , 331 F. Supp. 2d, at
923–928, 1025; National Abortion Federation , 330
F. Supp. 2d, at 471; Planned Parenthood , 320
F. Supp. 2d, at 982, 1001. Second , removing the fetus
intact, instead of dismembering it in utero , decreases the
likelihood that fetal tissue will be retained in the uterus, a
condition that can cause infection, hemorrhage, and infertility.
See Carhart , 331 F. Supp. 2d, at 923–928, 1025–1026; National Abortion Federation , 330 F. Supp. 2d, at
472; Planned Parenthood , 320 F. Supp. 2d, at 1001. Third , intact D&E diminishes the chances of exposing
the patient’s tissues to sharp bony fragments sometimes resulting
from dismemberment of the fetus. See Carhart , 331
F. Supp. 2d, at 923–928, 1026; National Abortion
Federation , 330 F. Supp. 2d, at 471; Planned
Parenthood , 320 F. Supp. 2d, at 1001. Fourth ,
intact D&E takes less operating time than D&E by
dismemberment, and thus may reduce bleeding, the risk of infection,
and complications relating to anesthesia. See Carhart , 331
F. Supp. 2d, at 923–928, 1026; National Abortion
Federation , 330 F. Supp. 2d, at 472; Planned
Parenthood , 320 F. Supp. 2d, at 1001. See also Stenberg , 530 U. S., at 928–929, 932; Brief for ACOG as Amicus Curiae 2,
11–13. Based on
thoroughgoing review of the trial evidence and the congressional
record, each of the District Courts to consider the issue rejected
Congress’ findings as unreasonable and not supported by the
evidence. See Carhart , 331 F. Supp. 2d, at 1008–1027; National Abortion Federation , 330 F. Supp. 2d, at
482, 488–491; Planned Parenthood , 320 F. Supp. 2d, at
1032. The trial courts concluded, in contrast to Congress’
findings, that “significant medical authority supports the
proposition that in some circumstances, [intact D&E] is the
safest procedure.” Id., at 1033 (quoting Stenberg , 530 U. S., at 932); accord Carhart , 331 F. Supp. 2d, at 1008–1009, 1017–1018; National Abortion Federation , 330 F. Supp. 2d, at
480–482;[ Footnote 5 ] cf. Stenberg , 530 U. S., at 932 (“[T]he record shows that
significant medical authority supports the proposition that in some
circumstances, [intact D&E] would be the safest
procedure.”). The
District Courts’ findings merit this Court’s respect. See, e.g. , Fed. Rule Civ. Proc. 52(a); Salve Regina
College v. Russell , 499 U. S. 225 , 233
(1991). Today’s opinion supplies no reason to reject those
findings. Nevertheless, despite the District Courts’ appraisal of
the weight of the evidence, and in undisguised conflict with Stenberg , the Court asserts that the Partial-Birth
Abortion Ban Act can survive “when … medical uncertainty persists.” Ante , at 33. This assertion is bewildering. Not only does
it defy the Court’s longstanding precedent affirming the necessity
of a health exception, with no carve-out for circumstances of
medical uncertainty, see supra , at 4–5; it gives short
shrift to the records before us, carefully canvassed by the
District Courts. Those records indicate that “the majority of
highly-qualified experts on the subject believe intact D&E to
be the safest, most appropriate procedure under certain
circumstances.” Planned Parenthood , 320 F. Supp. 2d,
at 1034. See supra , at
9–10. The Court
acknowledges some of this evidence, ante , at 31, but
insists that, because some witnesses disagreed with the ACOG and
other experts’ assessment of risk, the Act can stand. Ante , at 32–33, 37. In this insistence, the Court brushes
under the rug the District Courts’ well-supported findings that the
physicians who testified that intact D&E is never necessary to
preserve the health of a woman had slim authority for their
opinions. They had no training for, or personal experience with,
the intact D&E procedure, and many performed abortions only on
rare occasions. See Planned Parenthood , 320 F. Supp.
2d, at 980; Carhart , 331 F. Supp. 2d, at 1025; cf. National Abortion Federation , 330 F. Supp. 2d, at
462–464. Even indulging the assumption that the Government
witnesses were equally qualified to evaluate the relative risks of
abortion procedures, their testimony could not erase the
“significant medical authority support[ing] the proposition that in
some circumstances, [intact D&E] would be the safest
procedure.” Stenberg , 530 U. S., at 932 .[ Footnote
6 ] II A The Court offers flimsy and
transparent justifications for upholding a nationwide ban on intact
D&E sans any exception to safeguard a women’s health.
Today’s ruling, the Court declares, advances “a premise central to
[ Casey ’s] conclusion”— i.e. , the Government’s
“legitimate and substantial interest in preserving and promoting
fetal life.” Ante , at 14. See also ante , at 15
(“[W]e must determine whether the Act furthers the legitimate
interest of the Government in protecting the life of the fetus that
may become a child.”). But the Act scarcely furthers that interest:
The law saves not a single fetus from destruction, for it targets
only a method of performing abortion. See Stenberg , 530 U. S., at 930. And surely the statute was
not designed to protect the lives or health of pregnant women. Id. , at 951 (Ginsburg, J., concurring); cf. Casey , 505 U. S., at 846 (recognizing along with the
State’s legitimate interest in the life of the fetus, its
“legitimate interes[t] … in protecting the health of the
woman ” (emphasis added)). In short, the Court upholds a law
that, while doing nothing to “preserv[e] … fetal life,” ante , at 14, bars a woman from choosing intact D&E
although her doctor “reasonably believes [that procedure] will best
protect [her].” Stenberg , 530 U. S., at 946 (Stevens, J.,
concurring). As another reason for upholding
the ban, the Court emphasizes that the Act does not proscribe the
nonintact D&E procedure. See ante , at 34. But why not,
one might ask. Nonintact D&E could equally be characterized as
“brutal,” ante, at 26, involving as it does “tear[ing] [a
fetus] apart” and “ripp[ing] off” its limbs, ante, at 4,
6. “[T]he notion that either of these two equally gruesome
procedures … is more akin to infanticide than the other, or that
the State furthers any legitimate interest by banning one but not
the other, is simply irrational.” Stenberg , 530 U. S., at
946–947 (Stevens, J.,
concurring). Delivery of an intact, albeit nonviable,
fetus warrants special condemnation, the Court maintains, because a
fetus that is not dismembered resembles an infant. Ante, at 28. But so, too, does a fetus delivered intact after it is
terminated by injection a day or two before the surgical
evacuation, ante, at 5, 34–35, or a fetus delivered
through medical induction or cesarean, ante, at 9. Yet,
the availability of those procedures—along with D&E by
dismemberment—the Court says, saves the ban on intact D&E from
a declaration of unconstitutionality. Ante, at 34–35.
Never mind that the procedures deemed acceptable might put a
woman’s health at greater risk. See supra , at 13, and
n. 6; cf. ante , at 5,
31–32. Ultimately, the Court admits that “moral
concerns” are at work, concerns that could yield prohibitions on
any abortion. See ante , at 28 (“Congress could … conclude
that the type of abortion proscribed by the Act requires specific
regulation because it implicates additional ethical and moral
concerns that justify a special prohibition.”). Notably, the
concerns expressed are untethered to any ground genuinely serving
the Government’s interest in preserving life. By allowing such
concerns to carry the day and case, overriding fundamental rights,
the Court dishonors our precedent. See, e.g. , Casey , 505 U. S., at 850 (“Some of us as individuals find
abortion offensive to our most basic principles of morality, but
that cannot control our decision. Our obligation is to define the
liberty of all, not to mandate our own moral code.”); Lawrence v. Texas , 539 U. S. 558 , 571
(2003) (Though “[f]or many persons [objections to homosexual
conduct] are not trivial concerns but profound and deep convictions
accepted as ethical and moral principles,” the power of the State
may not be used “to enforce these views on the whole society
through operation of the criminal law.” (citing Casey , 505
U. S., at
850)). Revealing in this regard, the Court invokes
an antiabortion shibboleth for which it concededly has no reliable
evidence: Women who have abortions come to regret their choices,
and consequently suffer from “[s]evere depression and loss of
esteem.” Ante , at 29.[ Footnote 7 ] Because of women’s fragile emotional state and
because of the “bond of love the mother has for her child,” the
Court worries, doctors may withhold information about the nature of
the intact D&E procedure. Ante , at 28–29.[ Footnote 8 ] The solution the Court approves,
then, is not to require doctors to inform women,
accurately and adequately, of the different procedures and their
attendant risks. Cf. Casey , 505 U. S., at 873 (plurality
opinion) (“States are free to enact laws to provide a reasonable
framework for a woman to make a decision that has such profound and
lasting meaning.”). Instead, the Court deprives women of the right
to make an autonomous choice, even at the expense of their
safety.[ Footnote
9 ] This way of thinking reflects ancient notions
about women’s place in the family and under the Constitution—ideas
that have long since been discredited. Compare, e.g. , Muller v. Oregon , 208 U. S. 412 , 422–423
(1908) (“protective” legislation imposing hours-of-work limitations
on women only held permissible in view of women’s “physical
structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State , 16 Wall. 130, 141 (1873)
(Bradley, J., concurring) (“Man is, or should be, woman’s protector
and defender. The natural and proper timidity and delicacy which
belongs to the female sex evidently unfits it for many of the
occupations of civil life. … The paramount destiny and mission of
woman are to fulfil[l] the noble and benign offices of wife and
mother.”), with United States v. Virginia , 518 U. S. 515 ,
533, 542, n. 12 (1996) (State may not rely on “overbroad
generalizations” about the “talents, capacities, or preferences” of
women; “[s]uch judgments have … impeded … women’s progress toward
full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb , 430 U. S. 199 , 207
(1977) (gender-based Social Security classification rejected
because it rested on “archaic and overbroad generalizations” “such
as assumptions as to [women’s] dependency” (internal quotation
marks
omitted)). Though today’s majority may
regard women’s feelings on the matter as “self-evident,” ante , at 29, this Court has repeatedly confirmed that
“[t]he destiny of the woman must be shaped … on her own conception
of her spiritual imperatives and her place in society.” Casey , 505 U. S., at 852. See also id ., at 877
(plurality opinion) (“[M]eans chosen by the State to further the
interest in potential life must be calculated to inform the woman’s
free choice, not hinder it.”); supra , at
3–4. B In cases on a
“woman’s liberty to determine whether to [continue] her pregnancy,”
this Court has identified viability as a critical consideration.
See Casey , 505 U. S., at 869–870 (plurality opinion).
“[T]here is no line [more workable] than viability,” the Court
explained in Casey , for viability is “the time at which
there is a realistic possibility of maintaining and nourishing a
life outside the womb, so that the independent existence of the
second life can in reason and all fairness be the object of state
protection that now overrides the rights of the woman. … In some
broad sense it might be said that a woman who fails to act before
viability has consented to the State’s intervention on behalf of
the developing child.” Id ., at
870. Today, the Court
blurs that line, maintaining that “[t]he Act [legitimately]
appl[ies] both previability and postviability because … a fetus is
a living organism while within the womb, whether or not it is
viable outside the womb.” Ante , at 17. Instead of drawing
the line at viability, the Court refers to Congress’ purpose to
differentiate “abortion and infanticide” based not on whether a
fetus can survive outside the womb, but on where a fetus is
anatomically located when a particular medical procedure is
performed. See ante , at 28 (quoting Congressional Findings
(14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp.
IV), p.
769). One wonders how long a line that
saves no fetus from destruction will hold in face of the Court’s
“moral concerns.” See supra , at 15; cf. ante , at
16 (noting that “[i]n this litigation” the Attorney General “does
not dispute that the Act would impose an undue burden if it covered
standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the
opinion refers to obstetrician-gynecologists and surgeons who
perform abortions not by the titles of their medical specialties,
but by the pejorative label “abortion doctor.” Ante , at
14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and
as a “baby,” ante, at 3, 8; second-trimester, previability
abortions are referred to as “late-term,” ante, at 26; and
the reasoned medical judgments of highly trained doctors are
dismissed as “preferences” motivated by “mere
convenience,” ante, at 3, 37. Instead of the heightened
scrutiny we have previously applied, the Court determines that a
“rational” ground is enough to uphold the Act, ante , at
28, 37. And, most troubling, Casey ’s principles,
confirming the continuing vitality of “the essential holding of Roe, ” are merely “assume[d]” for the moment, ante , at 15, 31, rather than “retained” or “reaffirmed,” Casey , 505 U. S., at
846. III A The Court
further confuses our jurisprudence when it declares that “facial
attacks” are not permissible in “these circumstances,” i.e. , where medical uncertainty exists. Ante , at
37; see ibid . (“In an as-applied challenge the nature of
the medical risk can be better quantified and balanced than in a
facial attack.”). This holding is perplexing given that, in
materially identical circumstances we held that a statute lacking a
health exception was unconstitutional on its face. Stenberg , 530 U. S., at 930; see id ., at 937 (in
facial challenge, law held unconstitutional because “significant
body of medical opinion believes [the] procedure may bring with it
greater safety for some patients ” (emphasis added)). See
also Sabri v. United States , 541 U. S. 600 , 609–610
(2004) (identifying abortion as one setting in which we have
recognized the validity of facial challenges); Fallon, Making Sense
of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991)
(“[V]irtually all of the abortion cases reaching the Supreme Court
since Roe v. Wade , 410
U. S. 113 (1973), have involved facial attacks on state
statutes, and the Court, whether accepting or rejecting the
challenges on the merits, has typically accepted this framing of
the question presented.”). Accord Fallon, As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321,
1356 (2000); Dorf, Facial Challenges to State and Federal Statutes,
46 Stan. L. Rev. 235, 271–276
(1994). Without
attempting to distinguish Stenberg and earlier decisions,
the majority asserts that the Act survives review because
respondents have not shown that the ban on intact D&E would be
unconstitutional “in a large fraction of relevant cases.” Ante , at 38 (citing Casey , 505 U. S., at 895).
But Casey makes clear that, in determining whether any
restriction poses an undue burden on a “large fraction” of women,
the relevant class is not “all women,” nor “all pregnant
women,” nor even all women “seeking abortions.” 505 U. S., at 895.
Rather, a provision restricting access to abortion, “must be judged
by reference to those [women] for whom it is an actual rather than
an irrelevant restriction,” ibid. Thus the absence of a
health exception burdens all women for whom it is
relevant—women who, in the judgment of their doctors, require an
intact D&E because other procedures would place their health at
risk.[ Footnote 10 ] Cf. Stenberg , 530 U. S., at 934 (accepting the “relative
rarity” of medically indicated intact D&Es as true but not
“highly relevant”—for “the health exception question is whether
protecting women’s health requires an exception for those
infrequent occasions”); Ayotte , 546 U. S., at 328 (facial
challenge entertained where “[i]n some very small percentage of
cases … women … need immediate abortions to avert serious, and
often irreversible damage to their health”). It makes no sense to
conclude that this facial challenge fails because respondents have
not shown that a health exception is necessary for a large fraction
of second-trimester abortions, including those for which a health
exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases. B If there
is anything at all redemptive to be said of today’s opinion, it is
that the Court is not willing to foreclose entirely a
constitutional challenge to the Act. “The Act is open,” the Court
states, “to a proper as-applied challenge in a discrete case.” Ante , at 38; see ante, at 37 (“The Government has
acknowledged that preenforcement, as-applied challenges to the Act
can be maintained.”). But the Court offers no clue on what a
“proper” lawsuit might look like. See ante , at 37–38. Nor
does the Court explain why the injunctions ordered by the District
Courts should not remain in place, trimmed only to exclude
instances in which another procedure would safeguard a woman’s
health at least equally well. Surely the Court cannot mean that no
suit may be brought until a woman’s health is immediately
jeopardized by the ban on intact D&E. A woman “suffer[ing] from
medical complications,” ante , at 38, needs access to the
medical procedure at once and cannot wait for the judicial process
to unfold. See Ayotte , 546 U. S., at
328. The Court
appears, then, to contemplate another lawsuit by the initiators of
the instant actions. In such a second round, the Court suggests,
the challengers could succeed upon demonstrating that “in discrete
and well-defined instances a particular condition has or is likely
to occur in which the procedure prohibited by the Act must be
used.” Ante , at 37. One may anticipate that such a
preenforcement challenge will be mounted swiftly, to ward off
serious, sometimes irremediable harm, to women whose health would
be endangered by the intact D&E
prohibition. The Court envisions
that in an as-applied challenge, “the nature of the medical risk
can be better quantified and balanced.” Ibid . But it
should not escape notice that the record already includes hundreds
and hundreds of pages of testimony identifying “discrete and
well-defined instances” in which recourse to an intact D&E
would better protect the health of women with particular
conditions. See supra , at 10–11. Record evidence also
documents that medical exigencies, unpredictable in advance, may
indicate to a well-trained doctor that intact D&E is the safest
procedure. See ibid. In light of this evidence, our
unanimous decision just one year ago in Ayotte counsels
against reversal. See 546 U. S., at 331 (remanding for
reconsideration of the remedy for the absence of a health
exception, suggesting that an injunction prohibiting
unconstitutional applications might
suffice). The Court’s allowance
only of an “as-applied challenge in a discrete case,” ante , at 38—jeopardizes women’s health and places doctors
in an untenable position. Even if courts were able to carve-out
exceptions through piecemeal litigation for “discrete and
well-defined instances,” ante , at 37, women whose
circumstances have not been anticipated by prior litigation could
well be left unprotected. In treating those women, physicians would
risk criminal prosecution, conviction, and imprisonment if they
exercise their best judgment as to the safest medical procedure for
their patients. The Court is thus gravely mistaken to conclude that
narrow as-applied challenges are “the proper manner to protect the
health of the woman.” Cf. ibid . IV As the Court wrote in Casey ,
“overruling Roe ’s central holding would not only reach an
unjustifiable result under principles of stare decisis ,
but would seriously weaken the Court’s capacity to exercise the
judicial power and to function as the Supreme Court of a Nation
dedicated to the rule of law.” 505 U. S., at 865. “[T]he very
concept of the rule of law underlying our own Constitution requires
such continuity over time that a respect for precedent is, by
definition, indispensable.” Id ., at 854. See also id ., at 867 (“[T]o overrule under fire in the absence of
the most compelling reason to reexamine a watershed decision would
subvert the Court’s legitimacy beyond any serious
question.”). Though today’s opinion does not go so far as
to discard Roe or Casey , the Court, differently
composed than it was when we last considered a restrictive abortion
regulation, is hardly faithful to our earlier invocations of “the
rule of law” and the “principles of stare decisis .”
Congress imposed a ban despite our clear prior holdings that the
State cannot proscribe an abortion procedure when its use is
necessary to protect a woman’s health. See supra , at 7,
n. 4. Although Congress’ findings could not withstand the
crucible of trial, the Court defers to the legislative override of
our Constitution-based rulings. See supra , at 7–9. A
decision so at odds with our jurisprudence should not have staying
power. In sum,
the notion that the Partial-Birth Abortion Ban Act furthers any
legitimate governmental interest is, quite simply, irrational. The
Court’s defense of the statute provides no saving explanation. In
candor, the Act, and the Court’s defense of it, cannot be
understood as anything other than an effort to chip away at a right
declared again and again by this Court—and with increasing
comprehension of its centrality to women’s lives. See supra , at 3, n. 2; supra, at 7, n. 4.
When “a statute burdens constitutional rights and all that can be
said on its behalf is that it is the vehicle that legislators have
chosen for expressing their hostility to those rights, the burden
is undue.” Stenberg , 530 U. S., at 952 (Ginsburg, J.,
concurring) (quoting Hope Clinic v. Ryan , 195
F. 3d 857, 881 (CA7 1999) (Posner, C. J.,
dissenting)). *  *  * For the reasons stated, I dissent from the
Court’s disposition and would affirm the judgments before us for
review. Footnote
1 The term
“partial-birth abortion” is neither recognized in the medical
literature nor used by physicians who perform second-trimester
abortions. See Planned Parenthood Federation of Am. v. Ashcroft , 320 F. Supp. 2d 957, 964 (ND Cal. 2004),
aff’d, 435 F. 3d 1163 (CA9 2006). The medical community refers
to the procedure as either dilation & extraction (D&X) or
intact dilation and evacuation (intact D&E). See, e.g. , ante , at 5; Stenberg v. Carhart , 530
U. S. 914 , 927
(2000). Footnote
2 Planned
Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 851–852 (1992),
described more precisely than did Roe v. Wade , 410
U. S. 113 (1973), the impact of abortion restrictions on
women’s liberty. Roe ’s focus was in considerable measure
on “vindicat[ing] the right of the physician to administer medical
treatment according to his professional judgment.” Id ., at
165. Footnote
3 Dilation
and evacuation (D&E) is the most frequently used abortion
procedure during the second trimester of pregnancy; intact D&E
is a variant of the D&E procedure. See ante , at 4, 6; Stenberg , 530 U. S., at 924, 927; Planned
Parenthood , 320 F. Supp. 2d, at 966. Second-trimester
abortions ( i.e. , midpregnancy, previability abortions)
are, however, relatively uncommon. Between 85 and 90 percent of all
abortions performed in the United States take place during the
first three months of pregnancy. See ante , at 3. See also Stenberg , 530 U. S., at 923–927; National Abortion
Federation v. Ashcroft , 330 F. Supp. 2d 436, 464
(SDNY 2004), aff’d sub nom. National Abortion
Federation v. Gonzales , 437 F. 3d 278 (CA2
2006); Planned Parenthood , 320 F. Supp. 2d, at 960,
and
n. 4. Adolescents and indigent women, research
suggests, are more likely than other women to have difficulty
obtaining an abortion during the first trimester of pregnancy.
Minors may be unaware they are pregnant until relatively late in
pregnancy, while poor women’s financial constraints are an obstacle
to timely receipt of services. See Finer, Frohwirth, Dauphinee,
Singh, & Moore, Timing of Steps and Reasons for Delays in
Obtaining Abortions in the United States, 74 Contraception 334,
341–343 (2006). See also Drey et al., Risk Factors Associated
with Presenting for Abortion in the Second Trimester, 107
Obstetrics & Gynecology 128, 133 (Jan. 2006) (concluding that
women who have second-trimester abortions typically discover
relatively late that they are pregnant). Severe fetal anomalies and
health problems confronting the pregnant woman are also causes of
second-trimester abortions; many such conditions cannot be
diagnosed or do not develop until the second trimester. See, e.g. , Finer, supra , at 344; F. Cunningham
et al., Williams Obstetrics 242, 290, 328–329, (22d ed. 2005);
cf. Schechtman, Gray, Baty, & Rothman, Decision-Making for
Termination of Pregnancies with Fetal Anomalies: Analysis of 53,000
Pregnancies, 99 Obstetrics & Gynecology 216, 220–221 (Feb.
2002) (nearly all women carrying fetuses with the most serious
central nervous system anomalies chose to abort their
pregnancies). Footnote
4 The Act’s
sponsors left no doubt that their intention was to nullify our
ruling in Stenberg , 530
U. S. 914 . See, e.g. , 149 Cong. Rec. 5731 (2003)
(statement of Sen. Santorum) (“Why are we here? We are here because
the Supreme Court defended the indefensible… . We have
responded to the Supreme Court.”). See also 148 Cong. Rec. 14273
(2002) (statement of Rep. Linder) (rejecting proposition that
Congress has “no right to legislate a ban on this horrible practice
because the Supreme Court says [it]
cannot”). Footnote
5 Even the
District Court for the Southern District of New York, which was
more skeptical of the health benefits of intact D&E, see ante , at 32, recognized: “[T]he Government’s own experts
disagreed with almost all of Congress’s factual findings”; a
“significant body of medical opinion” holds that intact D&E has
safety advantages over nonintact D&E; “[p]rofessional medical
associations have also expressed their view that [intact D&E]
may be the safest procedure for some women”; and “[t]he evidence
indicates that the same disagreement among experts found by the
Supreme Court in Stenberg existed throughout the time that
Congress was considering the legislation, despite Congress’s
findings to the contrary.” National Abortion Federation ,
330 F. Supp. 2d, at
480–482. Footnote
6 The
majority contends that “[i]f the intact D&E procedure is truly
necessary in some circumstances, it appears likely an injection
that kills the fetus is an alternative under the Act that allows
the doctor to perform the procedure.” Ante , at 34–35. But
a “significant body of medical opinion believes that inducing fetal
death by injection is almost always inappropriate to the
preservation of the health of women undergoing abortion because it
poses tangible risk and provides no benefit to the woman.” Carhart v. Ashcroft , 331 F. Supp. 2d 805,
1028 (Neb. 2004) (internal quotation marks omitted), aff’d, 413
F. 3d 791 (CA8 2005). In some circumstances, injections are
“absolutely [medically] contraindicated.” 331 F. Supp. 2d, at
1027. See also id ., at 907–912; National Abortion
Federation , 330 F. Supp. 2d, at 474–475; Planned
Parenthood , 320 F. Supp. 2d, at 995–997. The Court also
identifies medical induction of labor as an alternative. See ante , at 9. That procedure, however, requires a hospital
stay, ibid. , rendering it inaccessible to patients who
lack financial resources, and it too is considered less safe for
many women, and impermissible for others. See Carhart , 331
F. Supp. 2d, at 940–949, 1017; National Abortion
Federation , 330 F. Supp. 2d, at 468–470; Planned
Parenthood , 320 F. Supp. 2d, at 961, n. 5, 992–994,
1000–1002. Footnote
7 The Court is surely correct that, for most women,
abortion is a painfully difficult decision. See ante , at
28. But “neither the weight of the scientific evidence to date nor
the observable reality of 33 years of legal abortion in the United
States comports with the idea that having an abortion is any more
dangerous to a woman’s long-term mental health than delivering and
parenting a child that she did not intend to have … .” Cohen,
Abortion and Mental Health: Myths and Realities, 9 Guttmacher
Policy Rev. 8 (2006); see generally Bazelon, Is There a
Post-Abortion Syndrome? N. Y. Times Magazine, Jan. 21, 2007,
p. 40. See also, e.g. , American Psychological
Association, APA Briefing Paper on the Impact of Abortion (2005)
(rejecting theory of a postabortion syndrome and stating that
“[a]ccess to legal abortion to terminate an unwanted pregnancy is
vital to safeguard both the physical and mental health of women”);
Schmiege & Russo, Depression and Unwanted First Pregnancy:
Longitudinal Cohort Study, 331 British Medical J. 1303 (2005)
(finding no credible evidence that choosing to terminate an
unwanted first pregnancy contributes to risk of subsequent
depression); Gilchrist, Hannaford, Frank, & Kay, Termination of
Pregnancy and Psychiatric Morbidity, 167 British J. of Psychiatry
243, 247–248 (1995) (finding, in a cohort of more than 13,000
women, that the rate of psychiatric disorder was no higher among
women who terminated pregnancy than among those who carried
pregnancy to term); Stodland, The Myth of the Abortion Trauma
Syndrome, 268 JAMA 2078, 2079 (1992) (“Scientific studies indicate
that legal abortion results in fewer deleterious sequelae for women
compared with other possible outcomes of unwanted pregnancy. There
is no evidence of an abortion trauma syndrome.”); American
Psychological Association, Council Policy Manual: (N)(I)(3), Public
Interest (1989) (declaring assertions about widespread severe
negative psychological effects of abortion to be “without fact”).
But see Cougle, Reardon, & Coleman, Generalized Anxiety
Following Unintended Pregnancies Resolved Through Childbirth and
Abortion: A Cohort Study of the 1995 National Survey of Family
Growth, 19 J. Anxiety Disorders 137, 142 (2005) (advancing theory
of a postabortion syndrome but acknowledging that “no causal
relationship between pregnancy outcome and anxiety could be
determined” from study); Reardon et al., Psychiatric
Admissions of Low-Income Women following Abortion and Childbirth,
168 Canadian Medical Assn. J. 1253, 1255–1256 (May 13, 2003)
(concluding that psychiatric admission rates were higher for women
who had an abortion compared with women who delivered); cf. Major,
Psychological Implications of Abortion—Highly Charged and Rife with
Misleading Research, 168 Canadian Medical Assn. J. 1257, 1258 (May
13, 2003) (critiquing Reardon study for failing to control for a
host of differences between women in the delivery and abortion
samples). Footnote
8 Notwithstanding the “bond of love” women often have with
their children, see ante , at 28, not all pregnancies, this
Court has recognized, are wanted, or even the product of consensual
activity. See Casey , 505 U. S., at 891 (“[O]n an average
day in the United States, nearly 11,000 women are severely
assaulted by their male partners. Many of these incidents involve
sexual assault.”). See also Glander, Moore, Michielutte, &
Parsons, The Prevalence of Domestic Violence Among Women Seeking
Abortion, 91 Obstetrics & Gynecology 1002 (1998); Holmes,
Resnick, Kilpatrick, & Best, Rape-Related Pregnancy; Estimates
and Descriptive Characteristics from a National Sample of Women,
175 Am. J. Obstetrics & Gynecology 320 (Aug.
1996). Footnote
9 Eliminating or reducing women’s reproductive choices is
manifestly not a means of protecting them. When safe
abortion procedures cease to be an option, many women seek other
means to end unwanted or coerced pregnancies. See, e.g. ,
World Health Organization, Unsafe Abortion: Global and Regional
Estimates of the Incidence of Unsafe Abortion and Associated
Mortality in 2000, pp. 3, 16 (4th ed. 2004) (“Restrictive
legislation is associated with a high incidence of unsafe abortion”
worldwide; unsafe abortion represents 13% of all “maternal”
deaths); Henshaw, Unintended Pregnancy and Abortion: A Public
Health Perspective, in A Clinician’s Guide to Medical and Surgical
Abortion 11, 19 (M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes,
& P. Stubblefield eds. 1999) (“Before legalization, large
numbers of women in the United States died from unsafe
abortions.”); H. Boonstra, R. Gold, C. Richards, & L. Finer,
Abortion in Women’s Lives 13, and fig. 2.2 (2006) (“as late as
1965, illegal abortion still accounted for an estimated … 17% of
all officially reported pregnancy-related deaths”; “[d]eaths from
abortion declined dramatically after
legalization”). Footnote
10 There is, in short, no fraction because the numerator and
denominator are the same: The health exception reaches only those
cases where a woman’s health is at risk. Perhaps for this reason,
in mandating safeguards for women’s health, we have never before
invoked the “large fraction”
test.

Summary: The Partial-Birth Abortion Ban Act of 2003 was challenged by doctors who perform second-trimester abortions and Planned Parenthood, but the Supreme Court upheld the Act, concluding that it was more specific and precise than the state statute at issue in the previous case, Stenberg v. Carhart. The Court considered the validity of the Act, which regulates abortion procedures, and ruled against the broad, facial attack brought against it.