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  The Facial/As-Applied Distinction—Partially Aborted

  We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.

  Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.

  Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.

  In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.

  Published Friday, May 23, 2008 7:28 AM by Doug Kmiec

  Filed under: Douglas W. Kmiec, Supreme Court, partial birth abortion, facial as applied

About Doug Kmiec

• Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law, Pepperdine University. He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush. Former Dean of the law school at The Catholic University of America, Professor Kmiec was a member of the law faculty for nearly two decades at the University of Notre Dame.