Gonzales v. Carhart



The Fourteenth Amendment does not prevent states from passing a law against partial-birth abortion if the state bases the reasoning for the law on special ethical and moral concerns that do not apply to most other forms of abortion.


In 2003, the federal government promulgated a Partial-Birth Abortion Ban Act, which categorically banned these abortions without including an exception for the health and safety of the mother. It was struck down as unconstitutional by courts in New York, California, and Nebraska.

Upon appeal, the Second, Eighth, and Ninth Circuit Courts of Appeal affirmed the findings of the lower courts that the law was unconstitutional, based on language in Roe v. Wade, Planned Parenthood v. Casey, and related decisions holding that any state regulation on abortion needed to include an exception for the health of the mother. The Supreme Court heard an appeal of the Nebraska and Eighth Circuit case, which had been brought by a doctor named Carhart against the U.S. Attorney General, Alberto Gonzales.


  • Priscilla Smith (plaintiffs)
  • Paul Clement (defendants)



  • Anthony M. Kennedy (Author)
  • John G. Roberts, Jr.
  • Antonin Scalia
  • Clarence Thomas
  • Samuel A. Alito, Jr.

The majority opinion viewed the challenge narrowly as attacking the law on a facial rather than as-applied basis. While it found that it was not facially unconstitutional, it did not reject the possibility of an as-applied challenge. Kennedy stated that the undue burden standard in Planned Parenthood v. Casey required courts to place a stronger emphasis on the state’s interest in the life of the fetus than the lower courts had shown in reviewing this case. Since the medical community did not agree on the health risks that the partial-birth abortion process might be needed to resolve, partial-birth abortions could be banned without a health exception until greater clarity was found. Acknowledging that the Court had invalidated a different statute banning partial-birth abortions in Stenberg v. Gonzales, the Court stated that this statute had clearer language and thus did not violate due process. The majority opinion did specifically state that it was valid under the Commerce Clause.


  • Clarence Thomas (Author)
  • Antonin Scalia

Thomas and Scalia were less confident than the majority that the Commerce Clause gave Congress authority to impose this ban, but they felt that this issue did not need to be addressed in the current case.


  • Ruth Bader Ginsburg (Author)
  • David H. Souter
  • John Paul Stevens
  • Stephen G. Breyer

Ginsburg criticized the majority for departing from the respect for women’s bodily autonomy that was implied in Planned Parenthood v. Casey and Roe v. Wade. She tried to reframe the abortion discussion in those terms rather than centering it around the right to privacy. The dissent also took issue with the majority’s reliance on legislators over trained medical professionals, arguing that the judgment of doctors should be the most influential factor in determining whether a law should contain a health exception. Ginsburg felt that the majority had left the vision of Roe and Casey so far behind at this point that the value of those precedents had become uncertain.


This case illustrates the difference between facial and as-applied challenges to statutes. While the facial challenge failed in this case, since there are some situations in which the law does not create an undue burden, it is possible that an as-applied challenge might succeed if the woman’s life is at risk. Unfortunately, as with other cases involving medical emergencies, there is no time to realistically pursue court action before doctors need to make a decision. Carhart is the most recent major case in abortion jurisprudence, and its skeptical stance toward even a health exception shows how much more conservative the Court has become since Roe v. Wade in gradually rolling back women’s rights.