Can Congress "Find" That the Supreme Court Was Wrong About Evidence?
It Attempts to Do Just That in a Pending Abortion Bill

By PAUL WOLFSON
Tuesday, Mar. 18, 2003

Suppose the Supreme Court rules that a law is unconstitutional, and that ruling is based squarely on the Court's conclusions from facts placed in evidence. Then Congress passes a new law that is directly contrary to the Court's decision, because Congress draws a conflicting conclusion from the same facts. A key constitutional question turns on whose view of the facts is correct. So whose view of the evidence should win out?

That very question will be raised if an abortion bill currently pending in Congress is enacted.

The Supreme Court Decision, and Congress's Reaction

In 2000, in Stenberg v. Carhart, the Supreme Court struck down Nebraska's ban on certain abortion procedures - "partial-birth" abortion to some; "dilation and extraction" (D&X) to medical professionals. In so ruling, the Court stressed that substantial (though not unanimous) medical authority had concluded that for some women, D&X would be the procedure least risky to their health. Yet, the Court noted, the Nebraska law contained no "health exception" for such circumstances. Accordingly, the Court, based on this medical evidence, found the ban to be an "undue burden" on the constitutional abortion right.

One might have predicted that Congress would react by simply prohibiting D&X with a health exception. It didn't. Instead, Congress is considering a new law that has no such exception

The law does, however, have "findings" that contradict the Supreme Court's review of the medical evidence. Specifically, the bill "finds" - expressly contrary to Carhart - that the "great weight of evidence" demonstrates D&X "is never necessary to preserve the health of a woman." The conflict is clear: The Court accepted the "substantial medical judgment" that D&X is necessary for some women's health; now Congress has said it's not.

This approach raises far-reaching constitutional questions. Should the Supreme Court defer to Congress's more recent review of the medical evidence? Or should the Court stand by its own analysis, which supported its ruling that the Nebraska law was flawed?

Why the Court's Review of the Evidence Should Trump Congress's

The Court should stand by its own analysis. There might be a circumstance in which the Court should defer to Congress's new assessment of evidence. But it shouldn't happen here.

Here, Congress did not make findings on a matter where it has superior knowledge - say, a calculation about what regulatory strategy works best. Instead, it plainly made findings to try to dictate how the courts should decide a factual question that is central to a constitutional issue. In effect, Congress took direct aim at Carhart and tried to overrule it by attacking the Court's reasoning in that case. The pending bill says to the Court: "You were mistaken when you said in Carhart that D&X is supported by some experts. In fact, no real experts support D&X, and it is never needed to preserve any woman's health."

This challenge to the Court's authority is startling. It's not just that Congress takes a different view of the medical facts than the Court has taken. More than this, Congress is saying that the Court's review of the medical evidence in a specific case is not just wrong, but insupportable. The bill suggests not that it's an instance where "reasonable minds can differ," but rather that Congress has the only reasonable mind. Put another way, the bill declares that the facts found by the Supreme Court were non-facts.

Importantly, this is not a case of Congress's reviewing new, updated evidence that arose after the decision was issued - evidence that might also cause the Court to change its mind. For instance, suppose that post-Carhart, a brilliant doctor invented a new procedure that every expert agreed was superior to D&X for every woman, and that was entirely safe. Then Congress might be within its rights in making new factual findings. But that didn't happen here.

This is also not a case where Congress said that the Court had been too harsh in ruling out certain evidence Congress reasonably considered to be relevant. Rather, Congress has faulted the Court for casting too wide a net, and listening to all the qualified experts who provided on a given issue, not just some of them. Congress, not the Court, is constraining the universe of evidence to get the result it wants. And it is particularly troubling that Congress is doing so to limit, rather than expand, a right protected by the Constitution.

The Recent Morrison Ruling Shows the Court's View Must Prevail

Unsurprisingly, Supreme Court precedent makes it evident that this attempt by Congress to overturn the Court should fail. The Court has made clear that when a question of constitutional law turns on what the "true facts" are, congressional "findings" cannot make something so that is not so.

For example, take the 2000 decision in United States v. Morrison. When Congress passed the Violence Against Women Act (VAWA), it expressly found that gender-motivated violence affected interstate commerce. Nevertheless, the Court ruled directly to the contrary, and thus ruled that the Act violated the Commerce Clause.

Congress suspected that when VAWA got to the Supreme Court, the Commerce Clause would be a problem. After all, the Rehnquist Court, stressing federalism concerns, has increasingly held that certain issues are properly dealt with at the state, not federal level. Violent crimes, of course, are typically addressed by state, not federal law - including violence directed against women.

So, Congress tried to solve this constitutional problem with VAWA in advance by making explicit findings that gender-motivated violence affects interstate commerce, which - if correct - would make it a proper subject for federal intervention.

But as the Court stressed in Morrison, the ultimate issue of whether something affects interstate commerce is a constitutional question, which makes it a matter on which the courts have the final say. If that were not so, then Congress could put the Supreme Court out of the very job that John Marshall first declared, in Marbury v. Madison, was its special province: the job of assessing Congressional statutes to see if they are consistent with the Constitution. In our system, the Supreme Court is the final expositor of constitutional law.

The Earlier Morgan and Turner Rulings Do Not Support Congress's Aggressive Bill

The pending bill expressly cites the Court's 1966 decision in Katzenbach v. Morgan as support for Congress's "finding." But in fact, Morgan does not support Congress's attempt to overrule constitutionally-decisive Supreme Court findings at all.

Arguably, Morgan held, among other things, that Congress's judgment that literacy tests for voting were equal protection violations, could trump earlier, contrary Supreme Court rulings saying that literacy tests did not violate equal protection.

But even if Morgan indeed so held - and that is a subject for debate - that holding was repudiated by the 1997 decision in Boerne v. Flores. There, the Court emphasized that Congress may not alter the content of a constitutional right once it has been defined by the Court.

The bill also invokes Turner Broadcasting System v. FCC. But Turner Broadcasting, issued the same year as Boerne, did not contradict that decision.

Turner Broadcasting upheld the "must-carry" law, requiring cable operators to carry local broadcast stations, in part because Congress had found that without the law, cable operators would drop local stations, which could fail for lack of viewers. Had the Court then simply deferred to Congressional findings to resolve a constitutional issue, without examining the matter for itself?

Not at all. Before accepting Congress's findings, the Court required corroboration, and reviewed for itself a massive court record that, it held, demonstrated that Congress's findings were reasonable.

In contrast, the Court would never hold that the crucial congressional finding underlying the pending abortion bill - that there is no evidence D&X is ever best for any woman's health - were reasonable or supported by the record. On the contrary, it read the record entirely differently.

Obviously, the current bill takes aim at what its supporters call "partial birth" abortion. Whether these abortion procedures, or abortion more generally, should be limited, discouraged, tolerated, or proscribed is obviously a legitimate subject for debate in our society. What is troubling about the bill is that it takes aim at the Court itself, and its fundamental role in our system. Regardless of politics - and whether the legislation at stake is VAWA, which liberals (and some conservatives) supported, or this bill, which conservatives (and some liberals) do - we should all be able to agree that Congress cannot preempt or supersede the Court when it comes to interpreting the Constitution.


Paul Wolfson is a Supreme Court and appellate specialist at Wilmer, Cutler & Pickering in Washington, D.C. Before entering private practice, he worked in the Solicitor General's Office, where he helped prepare the government's brief in Stenberg v. Carhart. He can be reached at Paul.Wolfson@wilmer.com.

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