When the Fourth Circuit Court of Appeals upheld Virginia’s ban on partial-birth infanticide yesterday, the ruling’s language had a familiar ring to Americans United for Life’s legal team.
That’s because the 6-5 decision in Richmond Medical Center v. Herring used some of the same arguments made by AUL in the amicus brief we filed in the case.
The plaintiffs made a facial challenge to the Virginia law — arguing that, as written — as opposed to as applied — the law was unconstitutional. They argued that the court should apply the “large fraction” test used in parts of Planned Parenthood v. Casey, which posited that a law could be unconstitutional if it were invalid in a “large fraction” of its applications.
By contrast, our brief argued that the court, in determining its legality, must apply the traditional facial standard—that a law is unconstitutional only if invalid in all of its applications.
We added that the statute could not “be invalidated through a facial challenge attack even under Casey’s ‘large fraction’ standard.” Specifically, we outlined that Gonzales v. Carhart demonstrated that that the category of “relevant cases” to be examined in the “large fraction” standard is broader than that which courts have been evaluating in recent years. In Gonzales, the “relevant cases” were not only those women who suffered from medical complications and might, at some hypothetical time, require a D&X procedure (the medical term for partial-birth infanticide). Instead, the “relevant cases” referred to all instances in which the doctor proposed to do the prohibited procedure.
As we argued, the plaintiff’s own words made the flaw in their argument obvious:
Likewise, in the case at hand, the “relevant cases” refers not only to those “small fraction” of situations where a D&X is “accidentally” performed; instead, “relevant cases” refers to all cases of partial birth infanticide performed in the State of Virginia—both purposeful and accidental. Because the “accidental” D&X is—by the Plaintiffs’ own admission—only a “small fraction” of these relevant cases, the Virginia statute cannot be invalidated through a facial challenge attack even under Casey’s “large fraction” standard.
We emphasized this conclusion by pointing to the conclusion in Ayotte v. Planned Parenthood (where the U.S. Supreme Court overturned a broad injunction against New Hampshire’s parental-notice law that was only, arguably, invalid in a limited number of applications) that if a statute was invalid in only a few applications, a court should craft a remedy to meet only those few applications.
While the Fourth Circuit ruling did not specifically mention our brief, the court clearly agreed with our arguments. It outlined the tension between the traditional facial standard and the “large fraction” test. It concluded that it need not decide which standard applied, because even under the Casey “large fraction” test, the plaintiff’s claims failed.
Likewise, the Fourth Circuit concluded:
[The plaintiff] testified that in less than 0.5% of the cases, a fetus is presented in a breech position and accidentally emerged intact up to its head, at which point the head becomes lodged in the cervix. … It is the rare circumstance when the fetus in breech position emerges intact to its naval on which [the plaintiff] relies to mount a facial challenge. … But Gonzales v. Carhart requires that we evaluate the constitutionality of the Act and appropriateness of the facial challenge based on “all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications.”
This conclusion is significant not only because we urged it in our brief, but also because it is the first instance that this particular portion of Gonzales has been interpreted as such in the abortion context. It represents a departure from the broad “large fraction” test, where the only circumstances weighed were those urged by the abortion industry.
The abortion industry’s argument, used by the plaintiffs in this case, that the range of cases that must be examined to determine the constitutionality of a law is very narrow — those hard cases that are usually stacked in its favor — when in reality the universe of cases that a court should examine to determine if there is an “undue burden” is much larger. Under the Fourth Circuit decision the “relevant cases” category represents a broader range of abortions and makes it more likely for state Attorneys General to defend their common-sense abortion regulations.
The court’s language on this point could not be more emphatic: “To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstances presented by [the plaintiff] is not appropriate under any standard for facial challenges.”
In addition to our amicus brief, AUL’s involvement in Richmond Medical Center v. Herring included practical aid for Virginia’s then-Solicitor General William Thro. AUL Senior Counsel Clarke Forsythe participated in mooting the case — acting as a mock questioner to help Thro prepare for oral arguments in the case.
