GONZALES, ATTORNEY GENERAL v. CARHART et al.

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124 OCTOBER TERM, 2006
Syllabus
GONZALES, ATTORNEY GENERAL v. CARHART et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 05–380. Argued November 8, 2006—Decided April 18, 2007*
Following this Court’s Stenberg v. Carhart, 530 U. S. 914, decision that
Nebraska’s “partial birth abortion” statute violated the Federal Consti
tution, as interpreted in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed
the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particu
lar method of ending fetal life in the later stages of pregnancy. The
Act does not regulate the most common abortion procedures used in the
first trimester of pregnancy, when the vast majority of abortions take
place. In the usual second-trimester procedure, “dilation and evacua
tion” (D&E), the doctor dilates the cervix and then inserts surgical in
struments into the uterus and maneuvers them to grab the fetus and
pull it back through the cervix and vagina. The fetus is usually ripped
apart as it is removed, and the doctor may take 10 to 15 passes to re
move it in its entirety. The procedure that prompted the federal Act
and various state statutes, including Nebraska’s, is a variation of the
standard D&E, and is herein 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, pulling
out its entire body instead of ripping it apart. In order to allow the
head to pass through the cervix, the doctor typically pierces or crushes
the skull.
The Act responded to Stenberg in two ways. First, Congress found
that unlike this Court in Stenberg, it was not required to accept the
District Court’s factual findings, and that there was a moral, medical,
and ethical consensus that partial-birth abortion is a gruesome and inhu
mane procedure that is never medically necessary and should be prohib
ited. Second, the Act’s language differs from that of the Nebraska stat
ute struck down in Stenberg. Among other things, the Act prohibits
“knowingly perform[ing] a partial-birth abortion . . . that is [not] neces
sary to save the life of a mother,” 18 U. S. C. § 1531(a). It defines
*Together with No. 05–1382, Gonzales, Attorney General v. Planned
Parenthood Federation of America, Inc., et al., on certiorari to the United
States Court of Appeals for the Ninth Circuit.

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125 Cite as: 550 U. S. 124 (2007)
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“partial-birth abortion,” § 1531(b)(1), as a procedure in which the doctor:
“(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 [mother’s] body . . . , or, in the case of breech presentation, any part
of the fetal trunk past the navel is outside the [mother’s] body . . . , 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 fetus.”
In No. 05–380, respondent abortion doctors challenged the Act’s con
stitutionality on its face, and the Federal District Court granted a per
manent injunction prohibiting petitioner Attorney General from enforc
ing the Act in all cases but those in which there was no dispute the
fetus was viable. The court found the Act unconstitutional because it
(1) lacked an exception allowing the prohibited procedure where neces
sary for the mother’s health and (2) covered not merely intact D&E but
also other D&Es. Affirming, the Eighth Circuit found that a lack of
consensus existed in the medical community as to the banned proce
dure’s necessity, and thus Stenberg required legislatures to err on the
side of protecting women’s health by including a health exception. In
No. 05–1382, respondent abortion advocacy groups brought suit chal
lenging the Act. The District Court enjoined the Attorney General
from enforcing the Act, concluding it was unconstitutional on its face
because it (1) unduly burdened a woman’s ability to choose a second
trimester abortion, (2) was too vague, and (3) lacked a health exception
as required by Stenberg. The Ninth Circuit agreed and affirmed.
Held: 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 excep
tion. Pp. 145–168.
1. The Casey Court reaffirmed what it termed Roe’s three-part “es
sential holding”: First, a woman has the right to choose to have an abor
tion before fetal viability and to obtain it without undue interference
from the State. Second, the State has the power to restrict abortions
after viability, if the law contains exceptions for pregnancies endanger
ing the woman’s life or health. And third, the State has legitimate
interests from the pregnancy’s outset in protecting the health of the
woman and the life of the fetus that may become a child. 505 U. S., at
846. Though all three are implicated here, it is the third that requires
the most extended discussion. In deciding whether the Act furthers
the Government’s legitimate interest in protecting fetal life, the Court
assumes, inter alia, that an undue burden on the previability abortion

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126 GONZALES v. CARHART
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right exists if a regulation’s “purpose or effect is to place a substantial
obstacle in the [woman’s] path,” id., at 878, but that “[r]egulations which
do no more than create a structural mechanism by which the State . . .
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 struck a balance that was central
to its holding, and the Court applies Casey’s standard here. A central
premise of Casey’s joint opinion—that the government has a legitimate,
substantial interest in preserving and promoting fetal life—would
be repudiated were the Court now to affirm the judgments below.
Pp. 145–146.
2. The Act, on its face, is not void for vagueness and does not impose
an undue burden from any overbreadth. Pp. 146–156.
(a) The Act’s text demonstrates that it regulates and proscribes
performing the intact D&E procedure. First, since the doctor must
“vaginally delive[r] a living fetus,” § 1531(b)(1)(A), the Act does not re
strict abortions involving delivery of an expired fetus or those not
involving vaginal delivery, e. g., hysterotomy or hysterectomy. And
it applies both previability and postviability because, by common under
standing and scientific terminology, a fetus is a living organism within
the womb, whether or not it is viable outside the womb. Second, be
cause the Act requires the living fetus to be delivered to a specific ana
tomical landmark depending on the fetus’ presentation, ibid., an abor
tion not involving such partial delivery is permitted. Third, because
the doctor must perform an “overt act, other than completion of deliv
ery, that kills the partially delivered fetus,” § 1531(b)(1)(B), the “overt
act” must be separate from delivery. It must also occur after delivery
to an anatomical landmark, since killing “the partially delivered” fetus,
when read in context, refers to a fetus that has been so delivered, ibid.
Fourth, given the Act’s scienter requirements, delivery of a living fetus
past an anatomical landmark by accident or inadvertence is not a crime
because it is not “deliberat[e] and intentiona[l],” § 1531(b)(1)(A). Nor is
such a delivery prohibited if the fetus has not been delivered “for the
purpose of performing an overt act that the [doctor] knows will kill [it].”
Ibid. Pp. 146–148.
(b) The Act is not unconstitutionally vague on its face. It satisfies
both requirements of the void-for-vagueness doctrine. First, it pro
vides doctors “of ordinary intelligence a reasonable opportunity to know
what is prohibited,” Grayned v. City of Rockford, 408 U. S. 104, 108,
setting forth “relatively clear guidelines as to prohibited conduct” and
providing “objective criteria” to evaluate whether a doctor has per
formed a prohibited procedure, Posters ‘N’ Things, Ltd. v. United States,

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511 U. S. 513, 525–526. Second, it does not encourage arbitrary or dis
criminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. Its
anatomical landmarks “establish minimal guidelines to govern law en
forcement,” Smith v. Goguen, 415 U. S. 566, 574, and its scienter require
ments narrow the scope of its prohibition and limit prosecutorial discre
tion, see Kolender, supra, at 358. Respondents’ arbitrary enforcement
arguments, furthermore, are somewhat speculative, since this is a pre
enforcement challenge. Pp. 148–150.
(c) The Court rejects respondents’ argument that the Act imposes
an undue burden, as a facial matter, because its restrictions on second
trimester abortions are too broad. Pp. 150–156.
(i) The Act’s text discloses that it prohibits a doctor from inten
tionally performing an intact D&E. Its dual prohibitions correspond
with the steps generally undertaken in this procedure: The doctor
(1) delivers the fetus until its head lodges in the cervix, usually past the
anatomical landmark for a breech presentation, see § 1531(b)(1)(A), and
(2) proceeds to the overt act of piercing or crushing the fetal skull after
the partial delivery, see § 1531(b)(1)(B). The Act’s scienter require
ments limit its reach to those physicians who carry out the intact D&E,
with the intent to undertake both steps at the outset. The Act excludes
most D&Es in which the doctor intends to remove the fetus in pieces
from the outset. This interpretation is confirmed by comparing the Act
with the Nebraska statute in Stenberg. There, the Court concluded
that the statute encompassed D&E, which “often involve[s] 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,
and rejected the Nebraska Attorney General’s limiting interpretation
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. It is apparent Congress responded to these concerns
because the Act adopts the phrase “delivers a living fetus,” 18 U. S. C.
§ 1531(b)(1)(A), instead of “ ‘delivering . . . a living unborn child, or a
substantial portion thereof,’ ” 530 U. S., at 938, thereby targeting extrac
tion of an entire fetus rather than removal of fetal pieces; identifies
specific anatomical landmarks to which the fetus must be partially deliv
ered, § 1531(b)(1)(A), thereby clarifying that the removal of a small
portion of the fetus is not prohibited; requires the fetus to be delivered
so that it is partially “outside the [mother’s] body,” ibid., thereby estab
lishing that delivering a substantial portion of the fetus into the vagina
would not subject a doctor to criminal sanctions; and adds the overt
act requirement, § 1531(b)(1), thereby making the distinction the Ne
braska statute failed to draw (but the Nebraska Attorney General

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128 GONZALES v. CARHART
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advanced). Finally, the canon of constitutional avoidance, see, e. g., Ed
ward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U. S. 568, 575, extinguishes any lingering doubt.
Interpreting the Act not to prohibit standard D&E is the most reason
able reading and understanding of its terms. Pp. 150–154.
(ii) Respondents’ contrary arguments are unavailing. The con
tention that any D&E may result in the delivery of a living fetus beyond
the Act’s anatomical landmarks because doctors cannot predict the
amount the cervix will dilate before the procedure does not take account
of the Act’s intent requirements, which preclude liability for an acciden
tal intact D&E. The evidence supports the legislative determination
that an intact delivery is almost always a conscious choice rather than
a happenstance, belying any claim that a standard D&E cannot be per
formed without intending or foreseeing an intact D&E. That many
doctors begin every D&E with the objective of removing the fetus as
intact as possible based on their belief that this is safer does not prove,
as respondents suggest, that every D&E might violate the Act, thereby
imposing an undue burden. It demonstrates only that those doctors
must adjust their conduct to the law by not attempting to deliver the
fetus to an anatomical landmark. Respondents have not shown that
requiring doctors to intend dismemberment before such a delivery will
prohibit the vast majority of D&E abortions. Pp. 154–156.
3. The Act, measured by its text in this facial attack, does not impose
a “substantial obstacle” to late-term, but previability, abortions, as pro
hibited by the Casey plurality, 505 U. S., at 878. Pp. 156–167.
(a) The contention that the Act’s congressional purpose was to cre
ate such an obstacle is rejected. The Act’s stated purposes are pro
tecting innocent human life from a brutal and inhumane procedure
and protecting the medical community’s ethics and reputation. The
government undoubtedly “has an interest in protecting the integrity
and ethics of the medical profession.” Washington v. Glucksberg, 521
U. S. 702, 731. Moreover, Casey reaffirmed that the government may
use its voice and its regulatory authority to show its profound respect
for the life within the woman. See, e. g., 505 U. S., at 873. The Act’s
ban on abortions involving partial delivery of a living fetus furthers the
Government’s objectives. Congress determined that such abortions are
similar to the killing of a newborn infant. This Court has confirmed
the validity of drawing boundaries to prevent practices that extinguish
life and are close to actions that are condemned. Glucksberg, supra, at
732–735, and n. 23. The Act also recognizes that respect for human life
finds an ultimate expression in a mother’s love for her child. Whether
to have an abortion requires a difficult and painful moral decision, Casey,

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Syllabus
505 U. S., at 852–853, which some women come to regret. In a decision
so fraught with emotional consequence, some doctors may prefer not to
disclose precise details of the abortion procedure to be used. It is, how
ever, precisely this lack of information that is of legitimate concern to
the State. Id., at 873. The State’s interest in respect for life is ad
vanced by the dialogue that better informs the political and legal sys
tems, the medical profession, expectant mothers, and society as a whole
of the consequences that follow from a decision to elect a late-term abor
tion. The objection that the Act accomplishes little because the stand
ard D&E is in some respects as brutal, if not more, than intact D&E is
unpersuasive. It was reasonable for Congress to think that partial
birth abortion, more than standard D&E, undermines the public’s per
ception of the doctor’s appropriate role during delivery, and perverts
the birth process. Pp. 156–160.
(b) The Act’s failure to allow the banned procedure’s use where
“ ‘necessary, in appropriate medical judgment, for the preservation of
the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New
Eng., 546 U. S. 320, 327–328, does not have the effect of imposing an
unconstitutional burden on the abortion right. The Court assumes the
Act’s prohibition would be unconstitutional, under controlling prece
dents, if it “subject[ed] [women] to significant health risks.” Id., at 328.
Whether the Act creates such risks was, however, a contested factual
question below: The evidence presented in the trial courts and before
Congress demonstrates both sides have medical support for their posi
tions. The Court’s precedents instruct that the Act can survive facial
attack when this medical uncertainty persists. See, e. g., Kansas v.
Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent
with Casey, which confirms both that the State has an interest in pro
moting respect for human life at all stages in the pregnancy, and that
abortion doctors should be treated the same as other doctors. Medical
uncertainty does not foreclose the exercise of legislative power in the
abortion context any more than it does in other contexts. Other consid
erations also support the Court’s conclusion, including the fact that safe
alternatives to the prohibited procedure, such as D&E, are available.
In addition, if intact D&E is truly necessary in some circumstances, a
prior injection to kill the fetus allows a doctor to perform the procedure,
given that the Act’s prohibition only applies to the delivery of “a living
fetus,” 18 U. S. C. § 1531(b)(1)(A). Planned Parenthood of Central Mo.
v. Danforth, 428 U. S. 52, 77–79, distinguished. The Court rejects cer
tain of the parties’ arguments. On the one hand, the Attorney Gener
al’s contention that the Act should be upheld based on the congressional
findings alone fails because some of the Act’s recitations are factually

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130 GONZALES v. CARHART
Syllabus
incorrect, and some of the important findings have been superseded.
Also unavailing, however, is respondents’ contention that an abortion
regulation must contain a health exception if “substantial medical au
thority supports the proposition that banning a particular procedure
could endanger women’s health,” Stenberg, 530 U. S., at 938. Interpret
ing Stenberg as leaving no margin for legislative error in the face of
medical uncertainty is too exacting a standard. Marginal safety consid
erations, including the balance of risks, are within the legislative compe
tence where, as here, the regulation is rational and pursues legitimate
ends, and standard, safe medical options are available. Pp. 161–167.
4. These facial attacks should not have been entertained in the first
instance. In these circumstances the proper means to consider excep
tions is by as-applied challenge. Cf. Wisconsin Right to Life, Inc. v.
Federal Election Comm’n, 546 U. S. 410, 412. This is the proper man
ner to protect the woman’s health if it can be shown that in discrete and
well-defined instances a condition has or is likely to occur in which the
procedure prohibited by the Act must be used. No as-applied challenge
need be brought if the Act’s prohibition threatens a woman’s life, be
cause the Act already contains a life exception. 18 U. S. C. § 1531(a).
Pp. 167–168.
No. 05–380, 413 F. 3d 791; No. 05–1382, 435 F. 3d 1163, reversed.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a
concurring opinion, in which Scalia, J., joined, post, p. 168. Ginsburg,
J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ.,
joined, post, p. 169.
Solicitor General Clement argued the cause for petitioner
in both cases. With him on the briefs were Assistant Attor
ney General Keisler, Deputy Solicitor General Garre, Dep
uty Assistant Attorney General Katsas, Kannon K. Shan
mugam, Marleigh D. Dover, and Catherine Y. Hancock.
Priscilla J. Smith argued the cause for respondents in
No. 05–380. With her on the brief were Janet Crepps, Nan
E. Strauss, Sanford M. Cohen, and Jerry M. Hug. Eve C.
Gartner argued the cause for Planned Parenthood respond
ents in No. 05–1382. With her on the brief were Roger K.
Evans, Helene T. Krasnoff, and Beth H. Parker. Dennis J.

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131 Cite as: 550 U. S. 124 (2007)
Counsel
Herrera, Therese M. Stewart, and Kathleen S. Morris filed
a brief for respondent City and County of San Francisco in
No. 05–1382.†
†Briefs of amici curiae urging reversal in both cases were filed for the
American Association of Pro Life Obstetricians and Gynecologists et al.
by Clarke D. Forsythe and Denise M. Burke; for the American Center for
Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Walter M.
Weber, Thomas P. Monaghan, John P. Tuskey, Laura B. Hernandez, and
Shannon D. Woodruff; for the National Legal Foundation by Barry C.
Hodge; for the Right to Life Advocates, Inc., by Richard W. Schmude; for
the Thomas More Society, Inc., by Paul Benjamin Linton and Thomas
Brejcha; and for Jill Stanek et al. by Mathew D. Staver, Anita L. Staver,
Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister.
Briefs of amici curiae urging reversal in No. 05–380 were filed for the
State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R.
McBee, First Assistant Attorney General, Edward D. Burbach, Deputy
Attorney General, R. Ted Cruz, Solicitor General, and Joel L. Thollander,
Assistant Solicitor General, and by the Attorneys General for their respec
tive States as follows: Troy King of Alabama, Mike Beebe of Arkansas,
Charles J. Crist, Jr., of Florida, Steve Carter of Indiana, Jeremiah W. (Jay)
Nixon of Missouri, Wayne Stenehjem of North Dakota, Jim Petro of Ohio,
Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Caro
lina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and
Robert F. McDonnell of Virginia; for the Family Research Council et al.
by William L. Saunders; for the Foundation for Moral Law, Inc., by Ben
jamin D. DuPre´ and Gregory M. Jones; for the Horatio R. Storer Founda
tion, Inc., by James Bopp, Jr., Thomas J. Marzen, and Richard E. Coleson;
for Judicial Watch, Inc., by Meredith L. Di Liberto; for the Pro-Life Legal
Defense Fund et al. by Dwight G. Duncan, Philip D. Moran, Gregory S.
Baylor, and Steven H. Aden; for the Thomas More Law Center et al. by
Edward L. White III; for the United States Conference of Catholic Bish
ops et al. by Mark E. Chopko and Michael F. Moses; for the United States
Justice Foundation et al. by D. Colette Wilson and Gary G. Kreep; for
Gianna Jessen et al. by Kelly Shackelford; for Congressman Ron Paul
et al. by Teresa Stanton Collett; for Margie Riley et al. by James Joseph
Lynch, Jr.; and for John M. Thorp, Jr., M. D., et al. by Nikolas T. Nikas
and James L. Hirsen.
Briefs of amici curiae urging reversal in No. 05–1382 were filed for the
Christian Legal Society et al. by Richard W. Garnett, Gregory S. Baylor,
and Steven H. Aden; for the Christian Medical and Dental Associations

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132 GONZALES v. CARHART
Opinion of the Court
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 abor
tion procedures. In recitations preceding its operative pro
visions the Act refers to the Court’s opinion in Stenberg v.
et al. by Ms. Collett; for Matercare International et al. by Mr. Nikas,
Dorinda C. Bordlee, and Mr. Hirsen; and for Professor Hadley Arkes et al.
by John C. Eastman and Edwin Meese III.
Briefs of amici curiae urging affirmance in both cases were filed for the
American College of Obstetricians and Gynecologists by Caroline M.
Brown; for the Institute for Reproductive Health Access et al. by J. Peter
Coll, Jr., and Linda A. Rosenthal; for the National Women’s Law Center
et al. by Elizabeth B. McCallum, Marcia D. Greenberger, Dina R. Lassow,
and Gretchen Borchelt; for the Religious Coalition for Reproductive
Choice et al. by Karen L. Hagberg; for 52 Members of Congress by Claude
G. Szyfer; and for Former Federal Prosecutors by Maria T. Vullo.
Briefs of amici curiae urging affirmance in No. 05–380 were filed for
the Cato Institute by Jonathan D. Hacker; and for Stephen Chasen, M. D.,
et al. by Talcott Camp, Brigitte Amiri, Elisabeth Ryden Benjamin,
A. Stephen Hut, Kimberly Parker, and Lorie A. Chaiten.
Briefs of amici curiae urging affirmance in No. 05–1382 were filed for
the American Civil Liberties Union et al. by Mr. Camp, Steven R. Shapiro,
Louise Melling, Ms. Amiri, and Ms. Benjamin; for the American Medical
Women’s Association et al. by Ms. Chaiten, Carter G. Phillips, Eamon P.
Joyce, and Robert N. Hochman; for the California Medical Association by
Alan B. Morrison, Pamela S. Karlan, Jeffrey L. Fisher, Amy Howe, and
Kevin K. Russell; and for the NARAL Pro-Choice America Foundation
et al. by Andrew T. Karron and Cathleen M. Mahoney.
Briefs of amici curiae were filed in both cases for Constitutional Law
Professors by Kathryn M. Davis; and for Statisticians by Molly S. Boast
and Christian R. Everdell.
Briefs of amici curiae were filed in No. 05–380 for the Eagle Forum
Education & Legal Defense Fund by Andrew L. Schlafly; for the Ruther
ford Institute by John W. Whitehead; and for Sandra Cano et al. by Linda
Boston Schlueter, Allan E. Parker, Jr., and Richard Clayton Trotter.
Briefs of amici curiae were filed in No. 05–1382 for Faith and Action
et al. by Bernard P. Reese, Jr.; and for Legal Defense for Unborn Children
by Alan Ernest.

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133 Cite as: 550 U. S. 124 (2007)
Opinion of the Court
Carhart, 530 U. S. 914 (2000), which also addressed the sub
ject of abortion procedures used in the later stages of preg
nancy. 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 en
forcement. 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 en
join 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 Fran
cisco 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 Cir
cuit affirmed. 435 F. 3d 1163 (2006). We granted certiorari.
547 U. S. 1205 (2006).

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134 GONZALES v. CARHART
Opinion of the Court
I
A
The Act proscribes a particular manner of ending fetal life,
so it is necessary here, as it was in Stenberg, to discuss abor
tion procedures in some detail. Three United States Dis
trict Courts heard extensive evidence describing the proce
dures. 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. Na
tional 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, National
Abortion Federation v. Gonzales, 437 F. 3d 278 (2006). The
three District Courts relied on similar medical evidence; in
deed, 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 approx
imately 1.3 million abortions performed each year in the
United States take place in the first three months of preg
nancy, which is to say in the first trimester. Planned Par
enthood, supra, 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 medi
cation, such as mifepristone (commonly known as RU–486),
to terminate the pregnancy. National Abortion Federa
tion, supra, at 464, n. 20. The Act does not regulate these
procedures.

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Of the remaining abortions that take place each year, most
occur in the second trimester. The surgical procedure re
ferred to as “dilation and evacuation” or “D&E” is the usual
abortion method in this trimester. Planned Parenthood,
supra, at 960–961. Although individual techniques for per
forming 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. National Abortion
Federation, supra, at 465; App. in No. 05–1382, at 61. The
steps taken to cause dilation differ by physician and gesta
tional age of the fetus. See, e. g., Carhart, supra, at 852,
856, 859, 862–865, 868, 870, 873–874, 876–877, 880, 883, 886.
A doctor often begins the dilation process by inserting os
motic 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 gen
eral 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. Na
tional Abortion Federation, supra, at 464–465; Planned
Parenthood, supra, at 961.
After sufficient dilation the surgical operation can com
mence. 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

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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 re
maining 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., National
Abortion Federation, supra, at 465; Planned Parenthood,
320 F. Supp. 2d, 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; National
Abortion Federation, supra, at 474–475.
The abortion procedure that was the impetus for the nu
merous bans on “partial-birth abortion,” including the Act,
is a variation of this standard D&E. See M. Haskell, Dila
tion and Extraction for Late Second Trimester Abortion
(1992), 1 Appellant’s App. in No. 04–3379 (CA8), p. 109 (here
inafter 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.” Na
tional 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

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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 per
centage 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, 331 F. Supp. 2d, 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 for
ceps a little bit differently. I don’t close them quite so
much, and I just gently draw the tissue out attempt
ing 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), at 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, supra, at 886–887.

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Intact D&E gained public notoriety when, in 1992,
Dr. Martin Haskell gave a presentation describing his
method of performing the operation. Dilation and Extrac
tion 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 fin
gers 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 be
fore 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—every

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thing but the head. The doctor kept the head right in
side the uterus. . . .
“ ‘The baby’s little fingers were clasping and unclasp
ing, 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 tis
sue exudes to allow the head to pass through.” App. in
No. 05–380, at 41; see also Carhart, 331 F. Supp. 2d, at 866–
867, 874. Still other physicians reach into the cervix with
their forceps and crush the fetus’ skull. Id., 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 re
move it. Id., at 864, 878; see also Planned Parenthood,
supra, at 965.
Some doctors performing an intact D&E attempt to re
move 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

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collapse the skull” and kill the fetus before it is born. Id.,
at 409; see also Carhart, supra, at 862, 878. Another doc
tor testified he crushes a fetus’ skull not only to reduce its
size but also to ensure the fetus is dead before it is re
moved. 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 in
duce labor, and contractions occur to deliver the fetus. In
duction, 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 5 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 uter
ine cavity. A hysterectomy requires the removal of the
entire uterus. These two procedures represent about 0.07
percent of second-trimester abortions. National 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 pro
hibit 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 legis

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lation, 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, Con
gress made factual findings. Congress determined that this
Court in Stenberg “was required to accept the very question
able 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) (hereinafter Congressional Findings), but
that Congress was “not bound to accept the same factual
findings,” id., ¶ (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 grue
some and inhumane procedure that is never medically neces
sary and should be prohibited.” Id., ¶ (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 preg
nancy itself. This subsection takes effect 1 day after
the enactment.

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“(b) As used in this section—
“(1) the term ‘partial-birth abortion’ means an abor
tion in which the person performing the abortion—
“(A) deliberately and intentionally vaginally delivers
a living fetus until, in the case of a head-first presenta
tion, 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 other
wise legally authorized by the State to perform abor
tions, 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 in
jury, 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

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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 un
constitutional 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 appro
priate question—“whether ‘substantial medical authority’
supports the medical necessity of the banned procedure.”
Id., at 796 (quoting Stenberg, supra, at 938). This was the
proper framework, according to the Court of Appeals, be
cause “when a lack of consensus exists in the medical commu
nity, the Constitution requires legislatures to err on the side
of protecting women’s health by including a health excep
tion.” 413 F. 3d, at 796. The court rejected the Attorney
General’s attempt to demonstrate changed evidentiary cir
cumstances 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 re
spects”). It invalidated the Act. Ibid.

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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) re
quire[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 unconstitu
tional. The court interpreted Stenberg to require a health
exception unless “there is consensus in the medical commu
nity 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 “substan
tial disagreement exists in the medical community regarding
whether” the procedures prohibited by the Act are ever nec
essary 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 dif
ferences 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 be
cause it prohibited D&E. Id., at 1180–1181.
Finally, the Court of Appeals found the Act void for vague
ness. Id., at 1181. Abortion doctors testified they were un
certain 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

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the Act was unconstitutional on its face and should be perma
nently 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 in
stant 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 con
clusion—that the government has a legitimate and substan
tial 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 con
firmation of the State’s power to restrict abortions after
fetal viability, if the law contains exceptions for preg
nancies 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).

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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 con
sidered 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 un
dervalued 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 ex
ists if a regulation’s “purpose or effect is to place a substan
tial obstacle in the path of a woman seeking an abortion be
fore the fetus attains viability.” Id., at 878. On the other
hand, “[r]egulations which do no more than create a struc
tural mechanism by which the State, or the parent or guard
ian of a minor, may express profound respect for the life of
the unborn are permitted, if they are not a substantial obsta
cle 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 demon
strates its purpose and the scope of its provisions: It regu

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lates 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 exces
sive. Respondents assert that, at the least, the Act is void
for vagueness because its scope is indefinite. In the alterna
tive, 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 bur
den. In this litigation the Attorney General does not dis
pute 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 abor
tions that do not involve vaginal delivery (for instance, hys
terotomy or hysterectomy). The Act does apply both previ
ability 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 re
quires 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

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of the fetal trunk past the navel is outside the body of the
mother.” § 1531(b)(1)(A). 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). For pur
poses 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 de
livered” 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 intention
ally” delivered the fetus to one of the Act’s anatomical land
marks. § 1531(b)(1)(A). If a living fetus is delivered past
the critical point by accident or inadvertence, the Act is inap
plicable. 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 La-
Fave); 1 C. Torcia, Wharton’s Criminal Law § 27 (15th ed.
1993).
B
Respondents contend the language described above is in
determinate, and they thus argue the Act is unconstitution
ally vague on its face. “As generally stated, the void-for

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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 discrimina
tory 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 rea
sonable 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. Post
ers ‘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 re
quirement of mens rea”). The Act requires the doctor de
liberately to have delivered the fetus to an anatomical
landmark. 18 U. S. C. § 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

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those who act in good faith.” Colautti, supra, at 395 (inter
nal quotation marks omitted).
Respondents likewise have failed to show that the Act
should be invalidated on its face because it encourages arbi
trary or discriminatory enforcement. Kolender, supra, at
357. Just as the Act’s anatomical landmarks provide doctors
with objective standards, they also “establish minimal guide
lines 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 dis
cretion. It cannot be said that the Act “vests virtually
complete discretion in the hands of [law enforcement] to de
termine whether the [doctor] has satisfied [its provisions].”
Kolender, supra, at 358 (invalidating a statute regulating loi
tering). Respondents’ arguments concerning arbitrary en
forcement, 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 in
hibiting [constitutionally protected conduct].” Hoffman Es
tates 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 pro
hibits intact D&E; and, notwithstanding respondents’ argu
ments, 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 proce

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dure. 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 intend
ing to undertake both steps at the outset.
The Act excludes most D&Es in which the fetus is re
moved 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 per
forming 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. Re
moving 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 addi
tional overt act that kills the fetus after partial delivery.
§ 1531(b)(1).
A comparison of the Act with the Nebraska statute struck
down in Stenberg confirms this point. The statute in Sten
berg 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

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a “procedure” that “ ‘kill[s] the unborn child’ ” was to a dis
tinct procedure, not to the abortion procedure as a whole.
Id., at 943.
Congress, it is apparent, responded to these concerns be
cause the Act departs in material ways from the statute in
Stenberg. It adopts the phrase “delivers a living fetus,”
§ 1531(b)(1)(A), 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 re
moval 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 por
tion” 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 differ
ent 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 de
livery 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 differen
tiates the Act from the statute at issue in Stenberg.

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§ 1531(b)(1)(A). The Court in Stenberg interpreted “ ‘sub
stantial 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 fur
ther to meet the Court’s objections to the state statute con
sidered 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 ad
vanced) by differentiating between the overall partial-birth
abortion and the distinct overt act that kills the fetus. See
Stenberg, supra, 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 in
tact D&E, standard D&E does not involve a delivery fol
lowed by a fatal act.
The canon of constitutional avoidance, finally, extinguishes
any lingering doubt as to whether the Act covers the proto
typical 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. De-
Bartolo 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 long
standing 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 an

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tagonistic “ ‘canon of construction under which in cases in
volving abortion, a permissible reading of a statute [was] to
be avoided at all costs.’ ” Stenberg, supra, at 977 (Ken
nedy, J., dissenting) (quoting Thornburgh, 476 U. S., at 829
(O’Connor, J., dissenting); some internal quotation marks
omitted). 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 reason
able reading and understanding of its terms.
2
Contrary arguments by respondents are unavailing. Re
spondents look to situations that might arise during D&E,
situations not examined in Stenberg. They contend—rely
ing 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 proce
dure. It might dilate to a degree that the fetus will be re
moved 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 before
hand whether the abortion will proceed in a prohibited man
ner. Brief for Respondent Planned Parenthood et al. in
No. 05–1382, p. 38.

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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 out
set 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 per
son “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 practi
cally certain to follow from” their conduct. Ibid. A fetus
is only delivered largely intact in a small fraction of the over
all 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 re
move 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 man
ner of serial dilation. See, e. g., Dilation and Extraction 110.
Doctors who do not seek to obtain this serial dilation per
form an intact D&E on far fewer occasions. See, e. g., Car
hart, 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 evi
dence belies any claim that a standard D&E cannot be per
formed 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

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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 chal
lenge to its validity.
A
The Act’s purposes are set forth in recitals preceding its
operative provisions. A description of the prohibited abor
tion procedure demonstrates the rationale for the congres
sional enactment. The Act proscribes a method of abortion

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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 choos
ing not to prohibit it will further coarsen society to the
humanity of not only newborns, but all vulnerable and inno
cent human life, making it increasingly difficult to protect
such life.” Congressional Findings ¶ (14)(N). The Act ex
presses 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.”
Id., ¶ (14)(J).
There can be no doubt the government “has an interest in
protecting the integrity and ethics of the medical profes
sion.” 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 con
duct” 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 prece
dents 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

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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 inter
preting Casey’s requirement of a health exception so it be
comes tantamount to allowing a doctor to choose the abor
tion 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 in
terests in regulating the medical profession in order to pro
mote 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 none
theless conclude that the type of abortion proscribed by the
Act requires specific regulation because it implicates addi
tional ethical and moral concerns that justify a special prohi
bition. Congress determined that the abortion methods it
proscribed had a “disturbing similarity to the killing of a
newborn infant,” Congressional Findings ¶ (14)(L), and thus
it was concerned with “draw[ing] a bright line that clearly
distinguishes abortion and infanticide,” id., ¶ (14)(G). 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.

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Respect for human life finds an ultimate expression in the
bond of love the mother has for her child. The Act recog
nizes this reality as well. Whether to have an abortion re
quires 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 stand
point this ought not to be surprising. Any number of pa
tients 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., National 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 concern
ing the way in which the fetus will be killed that is of legiti
mate concern to the State. Casey, supra, at 873 (plurality
opinion) (“States are free to enact laws to provide a reason
able 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

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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 in
forms the political and legal systems, the medical profession,
expectant mothers, and society as a whole of the conse
quences 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 legis
lation accomplishes little. What we have already said, how
ever, 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, “under
mines 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). There would be a flaw in this Court’s
logic, and an irony in its jurisprudence, were we first to con
clude 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 be
cause 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).

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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 irrevers
ible 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 Con
gress 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 doc
tors 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 instru
ments 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 com
plete. Respondents, in addition, proffered evidence that in
tact D&E was safer for women with certain medical condi
tions or women with fetuses that had certain anomalies.
See, e. g., Carhart, 331 F. Supp. 2d, at 923–929; National

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Abortion Federation, 330 F. Supp. 2d, 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; National Abortion Federa
tion, supra, 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 re
garding the necessity or safety of intact D & E”); see also
National 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 North
ern 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 Gener
al’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.” National 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 medi
cally necessary [were] credible; rather [it found them to be]
theoretical or false.” Id., at 480. The court nonetheless in

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validated the Act because it determined “a significant body
of medical opinion . . . holds that D & E has safety advan
tages 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 discre
tion 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., dissent
ing); 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 con
firms 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 al
ternative procedures. The law need not give abortion doc
tors 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 con
text 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. Re
productive Health Services, 492 U. S. 490, 518–519 (1989)

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164 GONZALES v. CARHART
Opinion of the Court
(plurality opinion) (criticizing Roe’s trimester framework be
cause, inter alia, it “left this Court to serve as the country’s
ex officio medical board with powers to approve or disap
prove 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’ con
tention “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 leg
islative 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 cre
ates significant health risks provides a sufficient basis to con
clude in this facial attack that the Act does not impose an
undue burden.
The conclusion that the Act does not impose an undue bur
den 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 National 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 ap
plies to the delivery of “a living fetus. ” 18 U. S. C.
§ 1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E pro
cedure 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 Par
enthood of Central Mo. v. Danforth, 428 U. S. 52, 77–79

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165 Cite as: 550 U. S. 124 (2007)
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(1976), in which the Court invalidated a ban on saline am
niocentesis, 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 fact
finding under a deferential standard, we do not in the circum
stances here place dispositive weight on Congress’ findings.
The Court retains an independent constitutional duty to re
view 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 inde
pendent 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 recog
nized, some recitations in the Act are factually incorrect.
See National 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 in
struction on the prohibited procedure. Congressional Find
ings ¶ (14)(B). The testimony in the District Courts, how
ever, demonstrated intact D&E is taught at medical schools.
National Abortion Federation, supra, at 490; Planned Par
enthood, 320 F. Supp. 2d, at 1029. Congress also found there
existed a medical consensus that the prohibited procedure

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166 GONZALES v. CARHART
Opinion of the Court
is never medically necessary. Congressional Findings ¶ (1).
The evidence presented in the District Courts contradicts
that conclusion. See, e. g., Carhart, supra, at 1012–1015;
National 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 Sten
berg, 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 Na
tional 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 abor
tion regulations, like the present one, if some part of the
medical community were disinclined to follow the proscrip
tion. This is too exacting a standard to impose on the legis
lative 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

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167 Cite as: 550 U. S. 124 (2007)
Opinion of the Court
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 chal
lenge. The Government has acknowledged that preenforce
ment, 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 condi
tion has or is likely to occur in which the procedure prohib
ited 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 Amend
ment 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 quota
tion 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 re
solve that debate.
As the previous sections of this opinion explain, respond
ents have not demonstrated that the Act would be unconsti

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168 GONZALES v. CARHART
Thomas, J., concurring
tutional 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 re
solve questions of constitutionality with respect to each po
tential situation that might develop. “[I]t would indeed be
undesirable for this Court to consider every conceivable situ
ation 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 build
ing 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 dis
crete case. Cf. Wisconsin Right to Life, Inc. v. Federal
Election Comm’n, 546 U. S. 410, 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 fa
cial matter, is void for vagueness, or that it imposes an undue
burden on a woman’s right to abortion based on its over
breadth 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.
Justice Thomas, with whom Justice Scalia joins,
concurring.
I join the Court’s opinion because it accurately applies
current jurisprudence, including Planned Parenthood of

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169 Cite as: 550 U. S. 124 (2007)
Ginsburg, J., dissenting
Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write sep
arately to reiterate my view that the Court’s abortion juris
prudence, 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 dis
senting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983
(2000) (Thomas, J., dissenting). I also note that whether the
Partial-Birth Abortion Ban Act of 2003 constitutes a permis
sible 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).
Justice Ginsburg, with whom Justice Stevens, Jus
tice 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 au
thority of the State respecting the termination of pregnan
cies 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

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170 GONZALES v. CARHART
Ginsburg, J., dissenting
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 central
ity 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 criminaliz
ing the performance of a medical procedure that, in the polit
ical arena, has been dubbed “partial-birth abortion.” 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 in
tervention to ban nationwide a procedure found necessary
and proper in certain cases by the American College of Ob
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 136;
Stenberg v. Carhart, 530 U. S. 914, 927 (2000).

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Ginsburg, J., dissenting
stetricians 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 wom
an’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).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 Consti
tution.” 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 fam
ily, 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 con
nected to “their ability to control their reproductive lives.”
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.

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172 GONZALES v. CARHART
Ginsburg, J., dissenting
Ibid. Thus, legal challenges to undue restrictions on abor
tion 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 citi
zenship stature. See, e. g., Siegel, Reasoning from the Body:
A Historical Perspective on Abortion Regulation and Ques
tions 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 repro
ductive 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 the 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 Gyne
cologists, 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 preg
nancy 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

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173 Cite as: 550 U. S. 124 (2007)
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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 dila
tion and evacuation (intact D&E).3
In Stenberg, we expressly held that a statute banning in
tact 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 rela
3 Dilation and evacuation (D&E) is the most frequently used abortion
procedure during the second trimester of pregnancy; intact D&E is a vari
ant of the D&E procedure. See ante, at 135, 137; 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, rela
tively 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 134. See also Stenberg, 530 U. S., at 923–927; National Abor
tion 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, Dauphi
nee, 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 dis
cover 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 carry
ing fetuses with the most serious central nervous system anomalies chose
to abort their pregnancies).

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174 GONZALES v. CARHART
Ginsburg, J., dissenting
tive 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 re
quired, 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 appro
priate (or inappropriate) in light of estimated compara
tive 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 differ
ences 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 excep
tion.” Id., at 938. See also id., at 948 (O’Connor, J., concur
ring) (“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 ex
ception for women’s health. See 18 U. S. C. § 1531(a) (2000
ed., Supp. IV).4 The congressional findings on which the
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

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175 Cite as: 550 U. S. 124 (2007)
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Partial-Birth Abortion Ban Act rests do not withstand in
spection, as the lower courts have determined and this Court
is obliged to concede. Ante, at 165–166. 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. Na
tional 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
165–166. For example, Congress determined that no medi
cal 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 Pitts
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 legis
late a ban on this horrible practice because the Supreme Court says [it]
cannot”).

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176 GONZALES v. CARHART
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burgh, 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). 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 rec
ord that Congress compiled. There was, however, a sub
stantial body of medical opinion presented to Congress in
opposition. If anything . . . the congressional record estab
lishes 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 [Con
gress’] finding” that there is a medical consensus that intact
D&E “is never medically necessary and should be prohib
ited.” (internal quotation marks omitted)).
Similarly, Congress found that “[t]here is no credible medi
cal 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 Cal
ifornia Medical Association, attesting that intact D&E car
ries 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 (“Con
gress 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 gov
ernment’s own witnesses disagreed with many of the specific
congressional findings.” Id., at 1024.

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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” “extraordi
narily accomplished” and “very experienced” medical ex
perts 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
161 (“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 scar
ring, bleeding disorders, heart disease, or compromised im
mune 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

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178 GONZALES v. CARHART
Ginsburg, J., dissenting
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 perfo
ration of, the cervix and uterus—the most serious compli
cation 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, in
stead 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 dismember
ment 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, in
tact D&E takes less operating time than D&E by dismem
berment, 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 con
sider the issue rejected Congress’ findings as unreasonable

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179 Cite as: 550 U. S. 124 (2007)
Ginsburg, J., dissenting
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 sup
ports the proposition that in some circumstances, [intact
D&E] is the safest procedure.” Id., at 1033 (quoting Sten
berg, 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; 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 163. This as
sertion 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 un
certainty, see supra, at 172–173; it gives short shrift to the
records before us, carefully canvassed by the District Courts.
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 162,
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]rofes
sional 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 Su
preme 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.

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180 GONZALES v. CARHART
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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 177.
The Court acknowledges some of this evidence, ante, at
161, but insists that, because some witnesses disagreed with
ACOG and other experts’ assessment of risk, the Act can
stand. Ante, at 162, 166–167. 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 testi
mony could not erase the “significant medical authority sup
port[ing] the proposition that in some circumstances, [intact
D&E] would be the safest procedure.” Stenberg, 530 U. S.,
at 932.6
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 164. But a “significant body of medical opin
ion believes that inducing fetal death by injection is almost always inap
propriate 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 quota
tion marks omitted), aff ’d, 413 F. 3d 791 (CA8 2005). In some circum
stances, injections are “absolutely [medically] contraindicated.” 331
F. Supp. 2d, at 1027. See also id., at 907–912; National Abortion Federa
tion, 330 F. Supp. 2d, at 474–475; Planned Parenthood, 320 F. Supp. 2d,

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II
A
The Court offers flimsy and transparent justifications for
upholding a nationwide ban on intact D&E sans any excep
tion to safeguard a woman’s health. Today’s ruling, the
Court declares, advances “a premise central to [Casey’s] con
clusion”—i. e., the Government’s “legitimate and substantial
interest in preserving and promoting fetal life.” Ante,
at 145. See also ante, at 146 (“[W]e must determine
whether the Act furthers the legitimate interest of the Gov
ernment 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 (recog
nizing 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 145, 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 em
phasizes that the Act does not proscribe the nonintact D&E
procedure. See ante, at 164. But why not, one might ask.
at 995–997. The Court also identifies medical induction of labor as an
alternative. See ante, at 140. That procedure, however, requires a hos
pital stay, ibid., rendering it inaccessible to patients who lack financial
resources, and it too is considered less safe for many women, and im
permissible for others. See Carhart, 331 F. Supp. 2d, at 940–949, 1017;
National Abortion Federation, 330 F. Supp. 2d, at 468–470; Planned Par
enthood, 320 F. Supp. 2d, at 961, n. 5, 992–994, 1000–1002.

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182 GONZALES v. CARHART
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Nonintact D&E could equally be characterized as “brutal,”
ante, at 157, involving as it does “tear[ing] [a fetus] apart”
and “ripp[ing] off ” its limbs, ante, at 135. “[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 (Ste
vens, J., concurring).
Delivery of an intact, albeit nonviable, fetus warrants spe
cial condemnation, the Court maintains, because a fetus that
is not dismembered resembles an infant. Ante, at 158. But
so, too, does a fetus delivered intact after it is terminated by
injection a day or two before the surgical evacuation, ante,
at 136, 164, or a fetus delivered through medical induction or
cesarean, ante, at 140. Yet, the availability of those pro
cedures—along with D&E by dismemberment—the Court
says, saves the ban on intact D&E from a declaration of un
constitutionality. Ante, at 164–165. Never mind that the
procedures deemed acceptable might put a woman’s health at
greater risk. See supra, at 180, and n. 6; cf. ante, at 136,
161–162.
Ultimately, the Court admits that “moral concerns” are at
work, concerns that could yield prohibitions on any abortion.
See ante, at 158 (“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 funda
mental rights, the Court dishonors our precedent. See, e. g.,
Casey, 505 U. S., at 850 (“Some of us as individuals find abor
tion 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.”); Law
rence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many
persons [objections to homosexual conduct] are not trivial

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183 Cite as: 550 U. S. 124 (2007)
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concerns but profound and deep convictions accepted as ethi
cal 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 antiabor
tion shibboleth for which it concededly has no reliable evi
dence: Women who have abortions come to regret their
choices, and consequently suffer from “[s]evere depression
and loss of esteem.” Ante, at 159.7 Because of women’s
7 The Court is surely correct that, for most women, abortion is a pain
fully difficult decision. See ante, at 159. 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 abor
tion 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 Syn
drome? N. Y. Times Magazine, Jan. 21, 2007, p. 40. See also, e. g., Ameri
can Psychological Association, APA Briefing Paper on the Impact of Abor
tion (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); Stotland,
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 nega
tive 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

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184 GONZALES v. CARHART
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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 159.8 The solution the Court ap
proves, then, is not to require doctors to inform women, ac
curately and adequately, of the different procedures and their
attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opin
ion) (“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 de
prives women of the right to make an autonomous choice,
even at the expense of their safety.9
137, 142 (2005) (advancing theory of a postabortion syndrome but acknowl
edging that “no causal relationship between pregnancy outcome and anxi
ety could be determined” from study); Reardon et al., Psychiatric Admis
sions 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 Implica
tions of Abortion—Highly Charged and Rife with Misleading Research,
168 Canadian Medical Assn. J. 1257, 1258 (May 13, 2003) (critiquing Rear
don study for failing to control for a host of differences between women
in the delivery and abortion samples).
8 Notwithstanding the “bond of love” women often have with their chil
dren, see ante, at 159, 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, & Par
sons, The Prevalence of Domestic Violence Among Women Seeking Abor
tion, 91 Obstetrics & Gynecology 1002 (1998); Holmes, Resnick, Kil
patrick, & Best, Rape-Related Pregnancy: Estimates and Descriptive
Characteristics from a National Sample of Women, 175 Am. J. Obstetrics &
Gynecology 320 (Aug. 1996).
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 legisla
tion is associated with a high incidence of unsafe abortion” worldwide;

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185 Cite as: 550 U. S. 124 (2007)
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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 functio[n]”); 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 occupa
tions 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 general
izations” about the “talents, capacities, or preferences” of
women; “[s]uch judgments have . . . impeded . . . women’s
progress toward full citizenship stature throughout our Na
tion’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 159, this Court has re
peatedly 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
unsafe abortion represents 13 percent 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) (“Be
fore legalization, large numbers of women in the United States died from
unsafe abortions.”); H. Boonstra, R. Gold, C. Richards, & L. Finer, Abor
tion in Women’s Lives 13, and fig. 2.2 (2006) (“as late as 1965, illegal abor
tion still accounted for an estimated . . . 17% of all officially reported
pregnancy-related deaths”; “[d]eaths from abortion declined dramatically
after legalization”).

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186 GONZALES v. CARHART
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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 171–172.
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 independ
ent 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 con
sented 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 147. 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
158 (quoting Congressional Findings ¶ (14)(G)).
One wonders how long a line that saves no fetus from de
struction will hold in face of the Court’s “moral concerns.”
See supra, at 182; cf. ante, at 147 (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 abor

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187 Cite as: 550 U. S. 124 (2007)
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tions not by the titles of their medical specialties, but by the
pejorative label “abortion doctor.” Ante, at 144, 154, 155, 161,
163. A fetus is described as an “unborn child,” and as a
“baby,” ante, at 134, 138; second-trimester, previability abor
tions are referred to as “late-term,” ante, at 156; and the
reasoned medical judgments of highly trained doctors are
dismissed as “preferences” motivated by “mere conven
ience,” ante, at 134, 166. Instead of the heightened scrutiny
we have previously applied, the Court determines that a “ra
tional” ground is enough to uphold the Act, ante, at 158, 166.
And, most troubling, Casey’s principles, confirming the con
tinuing vitality of “the essential holding of Roe,” are merely
“assume[d]” for the moment, ante, at 146, 161, rather than
“retained” or “reaffirmed,” Casey, 505 U. S., at 846.
III
A
The Court further confuses our jurisprudence when it de
clares that “facial attacks” are not permissible in “these cir
cumstances,” i. e., where medical uncertainty exists. Ante,
at 167; 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 medi
cal 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 recog
nized the validity of facial challenges); Fallon, Making Sense
of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991) (“[V]irtu
ally 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

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188 GONZALES v. CARHART
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or rejecting the challenges on the merits, has typically ac
cepted 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 de
cisions, 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 [rele
vant] cases.” Ante, at 167 (citing Casey, 505 U. S., at 895).
But Casey makes clear that, in determining whether any re
striction poses an undue burden on a “large fraction” of
women, the relevant class is not “all women,” nor “all preg
nant women,” nor even all women “seeking abortions.”
Ibid. 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 pro
cedures would place their health at risk.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 enter
tained 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 re
spondents have not shown that a health exception is nec
10 There is, in short, no fraction because the numerator and denominator
are the same: The health exception reaches only those cases where a wom
an’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.

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essary 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 168; see ante, at 167 (“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
167–168. 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 proce
dure 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 compli
cations,” ante, at 168, 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 in
stances a particular condition has or is likely to occur in
which the procedure prohibited by the Act must be used.”
Ante, at 167. One may anticipate that such a preenforce
ment 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 bal
anced.” Ibid. But it should not escape notice that the rec

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ord already includes hundreds and hundreds of pages of tes
timony 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
177–179. Record evidence also documents that medical exi
gencies, 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 168—jeopardizes women’s health
and places doctors in an untenable position. Even if courts
were able to carve out exceptions through piecemeal litiga
tion for “discrete and well-defined instances,” ante, at 167,
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 pa
tients. The Court is thus gravely mistaken to conclude that
narrow as-applied challenges are “the proper manner to pro
tect 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 func
tion 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 conti
nuity over time that a respect for precedent is, by definition,

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indispensable.” Id., at 854. See also id., at 867 (“[T]o over
rule 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 de
spite our clear prior holdings that the State cannot proscribe
an abortion procedure when its use is necessary to pro
tect a woman’s health. See supra, at 174–175, n. 4. Al
though Congress’ findings could not withstand the crucible
of trial, the Court defers to the legislative override of our
Constitution-based rulings. See supra, at 174–176. A deci
sion so at odds with our jurisprudence should not have stay
ing 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 pro
vides 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 171, n. 2;
supra, at 174–175, n. 4. When “a statute burdens constitu
tional 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 dispo
sition and would affirm the judgments before us for review.