The Vagueness of Partial-Birth Abortion Bans: Deconstruction or Destruction?

Article excerpt


In 1997, President Clinton vetoed the most recent incarnation of the Partial-Birth Abortion Ban(1)--a controversial piece of legislation that prescribes criminal penalties such as fines and imprisonment for any physician performing such an abortion.(2) Thirty states have enacted their own versions of the Partial-Birth Abortion Ban, only some of which are currently in effect.(3) Several of these bans have been enjoined pending trial or have been permanently enjoined.(4) In January 2000, the Supreme Court agreed to review the Nebraska statute, which is one of the statutes permanently enjoined by a federal court of appeals.(5) As this issue goes to press, the Court has not yet heard oral arguments in the Nebraska case.

Opponents of the bans have challenged the constitutionality of the bans on a variety of grounds.(6) Two challenges--closely related to one another--are that the bans are unconstitutionally vague and unconstitutionally overbroad.(7) This comment will focus primarily on these two challenges and demonstrate that none of these bans is unconstitutionally vague or overbroad. Part II will provide a backdrop to the discussion, including a description of the abortion procedure at issue, the nature of the vagueness and overbreadth challenges to the partial-birth abortion bans, and the procedural history of the litigation of the bans.

Part III will provide a ,detailed analysis of the void-for-vagueness doctrine as applied to other criminal statutes which arguably infringe upon constitutionally protected behavior, as the partial-birth abortion bans allegedly do. The discussion will begin with an analysis of the appropriate standard to be applied when mounting a facial challenge to a state statute. The comment will then discuss the actus reus(8) and mens rea(9) elements of criminal law in relation to vagueness challenges in order to provide a sensible paradigm for the void-for-vagueness doctrine.

Part IV will discuss the nature of the vagueness challenges to the partial-birth abortion bans. This discussion will include the prevailing opinions in the medical community regarding the specificity of these statutes, and the limited case law on the doctrine as applied to these bans.

Finally, Part V will present an argument for how the void-for-vagueness doctrine should be applied to the partial-birth abortion bans. The discussion will demonstrate that the doctrine as traditionally applied in similar criminal statutes, when applied in the partial-birth abortion context, leads to the conclusion that none of the bans are unconstitutionally vague or overbroad.



In order to better understand the nature of this controversy, one must first understand the actual procedure at issue. The term "partial-birth abortion" is commonly understood to mean a certain method of abortion, referred to in the medical community as an "intact dilation and extraction" or "D&X" procedure.(10)

In the D&X procedure, the physician typically delivers the entire body of the fetus, except the head, before the fetus is aborted.(11) The physician aborts the fetus by evacuating the contents of the cranium, which is typically done by inserting scissors into the base of the fetus' skull, then suctioning out the cranial contents.(12) This procedure collapses the head, thereby facilitating removal of the dead fetus.(13)

One of the main issues raised by opponents of the partial-birth abortion bans is that the applicable statutes are vague and ambiguous.(14) The opponents contend that the bans do not provide sufficient notice to abortion providers as to which acts will subject the abortion providers to criminal liability.(15) Moreover, a vague statute might not provide sufficient standards for a court to determine whether the accused has, in fact, violated the criminal statute. …