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Greetings, Court fans!

The deluge has finally begun, with the Court issuing five decisions this week, including its decision in Gonzalez v. Carhart (05-380), which has been described as a “stunning victory” for pro life forces and an “astounding loss” for pro choice advocates. Since most of us prefer our information in bite-sized portions, we’ll split the Update in half, bringing you Carhart, Global Crossing, and James v. United States now, the remaining two decisions shortly.

Justice Kennedy issued the majority opinion in Carhart for a deeply divided Court, upholding Congress’s ban on one method of second trimester abortion – which the majority refers to as an “intact D&E.” Kennedy’s decision uses emotional, graphic and grisly language to describe the procedure at issue. (Unlike Kennedy, we’ll spare you the details, other than to say that it involves an attempt to deliver a fetus mainly intact prior to completing the abortion. A regular D&E, by contrast, involves removal of the fetus in parts.) Reversing the Eighth and Eleventh Circuits (and indirectly the Second Circuit), the Court found Congress’s partial birth abortion ban, 18 U.S.C. § 1531, constitutional; specifically the Court found that the law was not unconstitutionally vague, did not unduly burden (as a facial matter) a woman’s right to have a pre-viability abortion, and that the lack of a health exception was not fatal given the conflicting medical evidence regarding the safety benefits of the procedure.

The Court first explained that the law is narrow, most reasonably read to preclude only one type of second-trimester abortion procedure – an intact D&E of a living fetus. It does not preclude any first trimester methods of abortion, it does not apply to an intact D&E of a dead fetus (which can be accomplished by injection prior to the abortion), abortion by induction, and, contrary to the district court’s conclusion in Carhart, it does not preclude the standard D&E procedure. This is because the statute clearly states that it applies only when there is an intent to deliver the fetus intact to a particular anatomical landmark of the woman prior to completing an over act that kills the fetus. The definitions and intent requirement save the law from any vagueness challenge because the reference to specific anatomical landmarks (rather than referring merely to delivery of a “substantial portion” of the fetus, as did the Nebraska law struck down by the Court in Stenberg v. Carhart ) provide sufficient guidance to doctors to allow them to conform their actions to the statute. Moreover, doctors’ claims that they could accidentally violate the law by delivering a fetus substantially intact while attempting to perform a standard D&E are not well-founded because such an “accidental” procedure would lack the intent required for prosecution under the statute.

Turning to substantial burden, the Court began by stating that it “assumed” application of the framework adopted in Planned Parenthood v. Casey . (That the Court did not reaffirm Casey has enormous implications.) First, that a woman may not be prohibited from having an abortion prior to viability and a law may not impose an undue burden (defined as a substantial obstacle) on the exercise of this right. Second, the law may prohibit abortions after viability so long as an exception exists for pregnancies that endanger the life and health of the mother. Third, the State has a legitimate interest in the protection of the life of the fetus and the health of the mother. The Court focused here on the third interest (sort of), finding that the Government had a legitimate “moral” interest in regulating the intact D&E – “in which a fetus is killed just inches before completion of the birth process” as well as an interest in protecting the integrity and reputation of the medical profession from performing a procedure that appears similar to infanticide. While the law would not stop any abortions from occurring, the Court found that Congress legitimately could find that the intact D&E procedure raised particular moral and ethical considerations not involved with the standard D&E procedure (not disputing, however, that the standard D&E “is in some respects as brutal, if not more, than the intact D&E”). Since the law did not foreclose other options for abortions prior to viability, it did not constitute an undue burden. The Court reached this conclusion notwithstanding the district courts’ conclusions that the intact D&E provides medical benefits for some women. The majority found that medical disagreement existed over whether the ban on intact D&E would “ever impose significant health risk on women” and this “medical uncertainty . . . provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.” Further, the Court appeared to require that statute unduly burden a significant number of women – not that it burden a subset of women (those for whom the intact D&E procedure would provide significant medical benefit) substantially. This change in analysis will have significant ramifications for future cases.

Finally, the Court held that “facial” challenges to the law should not have been permitted, leaving open the door to an as-applied challenge in the future “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.” This procedural holding could be the most significant of the entire case – as it appears that the Court will now require piecemeal litigation of abortion statutes rather than allowing them to be challenged as a whole when enacted. This will make challenges to the statutes far more difficult – particularly given that pregnancy is far shorter in duration than litigation.

Justice Thomas and Justice Scalia concurred separately to reiterate their view that the Court’s prior abortion jurisprudence, including Roe and Casey have “no basis in the Constitution.”

Justice Ginsburg (joined by Stevens, Souter and Breyer) dissented, stating: “Today’s decision is alarming.” It declines to reaffirm Casey – a landmark, watershed case, it blurs the line between previability and postviability abortions, blesses for the first time an abortion prohibition with no health exception, and requires piecemeal as-applied challenges to abortion laws. It also devalues concerns for a woman’s autonomy and the right to control her own body recognized by the Court’s prior jurisprudence. Further, while the majority purports to rely on the State’s interest in protecting fetal life to reach this result – the law “saves not a single fetus from destruction.” It regulates only a method of abortion – a method that substantial medical evidence (reviewed by the district courts) indicates in the safest, most appropriate, method for some woman. Particularly troubling to the dissent was the majority’s finding that the law posed no undue burden because there was no showing that “the ban on intact D&E would be unconstitutional ‘in a large fraction of relevant cases.'” For the dissent, the relevant class should not be “all pregnant women,” but the women who “require an intact D&E because other procedures would place their health at risk.” The only redeeming aspect of the majority’s decision is that it keeps open the door for an as-applied challenge.

On a lighter and less controversial note, the Court issued its decision in Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc. (06-705) , in which the Court considered whether the FCC’s determination that a violation of its regulation mandating cost-sharing for pay telephone calls was an “unreasonable practice,” allowed a payphone operator to sue a long distance carrier in federal court under § 207 of the Communications Act of 1934. The FCC, recognizing that a pay phone call (e.g. by a phone card or 1-800 number) involved services provided by both the payphone operator and the long distance carrier, enacted a rate-sharing regulation requiring long distance carriers to pay payphone operators 24 cents for each call. Global Crossing, a long distance carrier, refused to pay the 24 cent-per-call compensation to Metrophones, the payphone operator, and Metrophones sued in federal court. The district court held that Global Crossing’s refusal to pay its “fair share” for use of the pay phone lines under the FCC regulation could serve as a predicate for a suit under § 207. Appealing, Global Crossing contended that the alleged violation of a regulation was not an “unreasonable practice” under § 201(b). The Ninth Circuit affirmed.

Writing for a seven Justice majority, Justice Breyer accepted the FCC’s conclusion that the long distance carrier’s failure to pay its fair share under the FCC’s regulations was an “unjust and unreasonable” practice actionable under § 207. The Court reviewed the lively history of the Communications Act and the FCC’s traditional rate-making functions, concluding that the regulation at issue fell within the FCC’s authority. The Court noted that even as new telecom laws were enacted in the 1990s, deregulating the industry and usurping much of the FCC’s traditional authority, Congress did not “totally abandon[] traditional regulatory requirements.” (Whew.) In further holding that a violation of the FCC’s regulation is a violation of the Communications Act (thus invoking § 207), the Court rejected Justice Scalia’s attempt to distinguish between “interpretive” regulations (which, in Scalia’s view, support § 207 suits) and “substantive” regulations (which do not). The Court observed that “the text does not suggest that, of all violations of regulations, only violations of interpretive regulations can amount to unjust or unreasonable practices.” The Court also rejected Justice Thomas’s argument that § 201(b) only reached “practices” that damaged customers, not other carriers, as unsupported by the text.

Finally, in James v. United States , No. 05-9264, the Court considered whether the crime of attempted burglary, as defined by Florida law, is a “violent felony” under the Armed Career Criminal Act (“ACCA”). The ACCA provides a 15-year mandatory minimum prison term for defendants convicted of three “violent felonies” or serious drug offenses prior to conviction for a violation of 18 U.S.C. § 922(g) (felon in possession of a firearm). The “violent felonies” specifically listed under the Act are burglary, arson, extortion, and a crime involving the use of explosives; the Act also includes crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(b)(ii). Justice Alito, writing for a 5-4 majority, affirmed the Eleventh Circuit’s conclusion that an attempted burglary is a “violent felony” under the “otherwise” clause because it “involves conduct that presents a serious potential risk of physical injury to another.” The Court rejected the defendant’s argument that attempts per se were excluded from consideration as violent felonies, holding that the salient inquiry was not whether the crime was completed but whether the crime seriously risked physical injury. The majority (including the Chief, Kennedy, Souter, and Breyer) found that an attempted burglary involved the risk of a potential confrontation between the would-be burglar and a third party, with an attempted burglary perhaps even more dangerous than the completed burglary because the attempted burglar was caught and, thus, actually confronted. The Court also noted, as “further evidence,” that an attempted burglary would count as a “crime of violence” under the Sentencing Guidelines.

Justice Scalia dissented, joined by Justices Stevens and Ginsburg (odd bed fellows), accusing the majority of an “ad hoc” holding and complaining about the lack of interpretive guidance regarding the “entirely reasonable and entirely indeterminate line” dividing which crimes present a serious potential risk of physical injury under the ACCA. Justice Scalia wandered off on an extended tangent about whether extortion (and attempted extortion) was more or less dangerous than burglary, and where attempted burglary should fall in the assessment of risks for violent felonies. And he scoffed at the majority’s reasoning, insisting that an attempted burglary was not as dangerous as a completed burglary, because the “confrontation” described by the majority “while the burglar is still outside the home is likely to consist of nothing more than the occupant’s yelling ‘Who’s there?’ from his window, and the burglar’s running away.” Less colorfully, Justice Thomas dissented separately to register his ongoing disagreement with what he believes to be “judicial factfinding” that unconstitutionally enhances a defendant’s sentence beyond that determined by a jury.

We’ll bring you the remaining two opinions from this week shortly.

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400