This morning the Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 in a 5/4 ruling with the majority opinion written by Justice Kennedy, a concurrence by Justice Thomas and a dissent by Justice Ginsburg. The statute prohibits a particular method of terminating a pregnancy, both pre-viability and post-viability for physicians who “in or affecting interstate or foreign commerce” knowingly perform a partial-birth abortion. Although Justice Kennedy’s opinion uses the “undue burden” language, the majority finds that the complete prohibition of the procedure with no exception for a woman’s health does not pose an undue burden or a substantial obstacle to the”abortion right.”The majority recognizes that there is medical disagreement as to whether the Act’s prohibition imposes significant health risks on women, but nonetheless defers, essentially, with the legislature’s judgment, at least in the context of a facial attack.
The majority’s opinion is striking for the almost absolute lack of focus on women. The medical procedure itself is discussed extensively. The role of the physician and medical judgment is discussed extensively. The impact on women and the idea that the right to choose to terminate a pregnancy has something to do with women, however, their right to body integrity, autonomy, liberty, is completely missing from the opinion. Only a reference to”an ultimate expression in the bond of love the mother has for her child”and the conclusion that”some women come to regret their choice to abort the infant life they once created and sustained”suggests this majority’s view of women in the context of the issue – we are by-standers to the issue and by-standers to the right ultimately recognized in Roe and Casey, rather than those most affected.
-Isabel Medina
My reading of the case is that the court has substantially eroded the fundamental right to an abortion before viability and that restrictions to an abortion (before viability) only have to meet a rational basis test. Given the court’s language, it is difficult to see how any D and E procedure cannot be banned on the same ground as the court upheld an intact D and E procedure. The Court seems in all but name to have abandoned Casey’s undue burden framework. I sincerely hope that there is a less pessimistic interpretation that someone might offer.
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What is particularly impressive about the Gonzales decision (discussed in more detail in my piece on http://lifeaftergonzales.blogspot.com) is the shift in Kennedy’s attitude toward stare decisis. In his Casey opinion, he was at great pains to stress the importance of precedent (in that case, the continuing vitality of Roe) and analyse the standards to be applied before overruling it. In his Gonzales opinion, anyone not otherwise well versed in Supreme Court abortion rights cases could easily get the impression that there was never a requirement for a health exception at all, given what little ink he gave the matter.
Whilst reading the rather flippant dismissal of the Rose-Danforth-Thornburgh-Casey-Ayotte-Stenberg(etc etc etc) health exception requirement, I couldn’t help thinking of the extensive discussion of the issue in the Roe v Wade oral argument, which made what I think is the central point: Without a health exception, an exception for cases of danger to the woman’s life is meaningless. The two things are not so neatly delineated that one can claim to safeguard the patient’s life without taking into account her health. Particularly from the prospective standpoint of a physician trying to make what is often a split-second treatment decision, it is not at all clear where the line can be drawn. The fear of prosecution in the event that a jury (or the supposedly independent medical board provided for in the federal D&X ban) decides that “only” the woman’s health is in jeopardy creates an intolerable conflict of interest.
Even more importantly, a ban of this nature intrudes into the doctor-patient relationship to such a degree that it can easily morph into a de facto ban of any other abortion procedure. Given that many anti-abortion groups do not shy away from violence and intimidation, it seems rather unlikely that they will refrain from the odd false accusation (indeed, having read quite a bit of anti-abortion propaganda, it is clear that deception would not be an altogether new tactic for them). An anonymous tip directed from such a group to a like-minded U.S. Attorney could easily put a gynaecologist out of business altogether, regardless of whether the allegation was ultimately true or not.