The U.S. Supreme Court next week is expected to announce a decision that could either reaffirm or undermine a woman’s fundamental right to choose an abortion, a right established 27 years ago by the landmark ruling Roe v. Wade.
The nine-member panel also is expected to decide on the legality of so-called bubble laws, weighing a woman’s right to access to abortion services and the free speech rights of disruptive anti-abortion protesters who gather outside clinics.
The decisions are likely to be announced Monday or Wednesday, before the court ends its term.
The first case, Stenberg v. Carhart, deals with a vaguely written Nebraska law attempting to ban certain abortion practices. The ruling could represent the court’s first major review of constitutional standards on abortion since 1992. The case on clinic staff and patient protection, Hill v. Colorado, concerns a safety zone set up to protect them from the harassment of anti-abortion demonstrators.
The case on abortion practices results from the current strategy of abortion foes to pass so-called “partial-birth” abortion laws that purport to outlaw a single procedure but actually bar nearly all abortions
The Carhart case arises from a vaguely worded 1997 Nebraska criminal law banning certain abortion practices. Doctors convicted of violations could be sentenced to 20 years in prison. Dr. Leroy Carhart sued in federal court to block implementation of the law. The law makes no provision to protect a woman’s health as the Supreme Court has required in earlier decisions.
Courts have struck down similar laws in 17 other states that claim to ban so-called “partial-birth abortions.” The laws are vague and confusing and could apply to virtually all abortions. Compounding the confusion around the laws, many incorrectly believe the term “partial-birth” abortion is analogous to “late-term” abortion. However, the laws could apply to an abortion as early as five weeks, or even earlier. Post-viability abortions were not under consideration in the Supreme Court case, and they are prohibited by a separate Nebraska law.
The Nebraska law was rejected by a federal district court and the Eighth Circuit Court of Appeals, which called it an unconstitutional burden on a woman’s right to choose.
The Supreme Court last ruled in 1992 on a major abortion rights case, Planned Parenthood v. Casey, letting stand state restrictions on abortions as long as they did not “unduly burden” a woman’s right to choose a pre-viability abortion. Abortion rights supporters say that ruling weakened the spirit of Roe v. Wade and approved restrictions such as waiting periods and parental notification and consent.
“We believe the Supreme Court will strike down the so-called ‘partial-birth abortion’ ban and in doing so, will reveal it to be a deceptive scheme intended to attack the right to choose abortion guaranteed by Roe v. Wade,” said Janet Benshoof, president of the Center for Reproductive Law and Policy. The center represents Dr. Carhart.
The Carhart ruling could strengthen or weaken the Casey doctrine.
Three justices clearly oppose abortion under all circumstances. Another bloc of three justices, including two Clinton appointees added since the Casey ruling, are considered supporters of a woman’s right to choose and likely to want to bolster protections for women. A third bloc of three justices falls in the middle and its views will be pivotal to this decision.
The “bubble” law case represents a response to another strategy of abortion foes.
The 1993 Colorado “bubble law” was an attempt to shelter clinic users from aggressive anti-abortion protesters. The law sets up a 100-foot area around a health clinic, and once patients or staff enter it, an eight-foot floating “bubble” protects them from unwanted contact by protesters.
Demonstrators may not pass out leaflets, display signs, or take part in oral protests, education or counseling in the eight-foot zone of separation without the protected person’s consent. Three abortion protesters calling themselves “sidewalk counselors” filed suit, claiming the law violated their First Amendment rights to free speech.
“The bubble law strikes a reasonable and responsible balance between patients and protesters,” said Ellen Brilliant, a spokesperson for Planned Parenthood of the Rocky Mountains. “It’s not about restricting freedom of speech but protecting women and families from violence when seeking reproductive health care.”
The Supreme Court reheard the Colorado case in light of its previous ruling that rejected a 15-foot floating protective zone in New York State. The court decided that was not in the government interest because the wide “floating” zone imposed more of a burden on free speech than was necessary to protect access to abortion services.
“My sense is this is going to be a squeaker,” said Betsy Cavendish, vice president of the National Abortion Rights Action League Foundation. The organization and the National Organization for Women’s Legal Defense and Education Fund joined a friend-of-the-court briefs supporting the Colorado law, saying it provides a reasonable and essential buffer for patients, especially in a national climate of hostility and violence.