Court's Abortion Ruling Undercuts Roe

The Supreme Court’s decision Wednesday upholding a law banning some abortions after 12 weeks, without a health exception, dismayed reproductive health advocates.

(WOMENSENEWS)–The Supreme Court’s ruling Wednesday upholding a federal abortion ban sent a wave of dismay across reproductive health groups Wednesday. The law, barring some abortions after 12 weeks, was held back by successful legal challenges for more than three years because the law includes no exception for protecting the health of the woman. It now may become effective within three weeks.

The Nebraska physician who brought the case, Dr. LeRoy H. Carhart, said in a prepared statement that he was "devastated" by the decision. Carhart was the doctor who sued and won the high court’s 2000 ruling that declared his state’s abortion ban unconstitutional. That state law is the model for the federal law enacted in 2003 and upheld in Wednesday’s decision.

"When the Supreme Court considered this issue seven years ago, they agreed that women’s health was a paramount concern and doctors, not politicians, were in the best position to decide what procedures were safest," Carhart said. "I am afraid the Supreme Court has just opened the door to an all-out assault on Roe and that the women in my practice may soon experience life without access to safe, legal abortions."

Reflecting Carhart’s view, reproductive rights advocate Gloria Feldt said, "It’s the worst possible ruling for women’s health." Feldt is the former president of the Planned Parenthood Federation of America and author of the 2004 book "The War on Choice."

"This is the first time the federal government has passed sweeping legislation that directly takes charge of a physician’s practice and directly takes away a woman’s right to make child-bearing decisions," said Feldt. "It’s earth-shattering."

Opponents of abortion cheered at the court’s 5-4 decision to uphold the first federal ban on a specific abortion procedure.

"This is a momentous day," said Beverly LaHaye, founder and chair of Concerned Women for America, an advocacy group in Washington. "With this decision, the Supreme Court has restored a tiny portion of the common good it knocked down in its 1973 decision, which classified an entire set of people–the unborn–as a sub-human species."

The high court’s decision to uphold the federal abortion law, signed by President Bush in 2003, reverses a precedent set more than three decades ago and repeatedly affirmed by the court that requires restrictions on abortion to make exceptions to protect women’s health.

In his decision, Justice Anthony Kennedy said that the law does not violate the constitutional right to abortion laid out in Roe v. Wade, the 1973 Supreme Court case that safeguarded abortion as part of a woman’s constitutional right to privacy, or in Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case that maintained the fundamental right to abortion but upheld restrictions on abortion as long as the law included protections for women’s life and health and did not place an "undue burden" on women’s ability to exercise their rights prior to the ability of a fetus to survive outside the womb.

Justice Ruth Bader Ginsburg, the sole woman on the court, delivered a biting dissent from the bench, denouncing the decision as a reversal of legal precedent and an attack on women’s health.

"It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists," she said.

O’Connor’s Absence Felt

Wednesday’s ruling was the court’s first major decision on the issue of abortion since the 2006 retirement of Sandra Day O’Connor, the legendary centrist whose support for limited abortion rights made her the court’s swing vote on the issue.

Two George W. Bush appointees–John Roberts and Samuel Alito–have joined the court since O’Connor’s retirement and the death of former Chief Justice William Rehnquist, a reliable, anti-choice vote.

After O’Connor’s departure Kennedy emerged as the pivotal swing vote and he sided with Roberts, Alito, Clarence Thomas and Antonin Scalia Wednesday.

Writing for the majority, Kennedy said the law "proscribes a method of abortion in which the fetus is killed just inches before completion of the birth process," echoing the same "inches before birth" language that Bush used when he signed the ban into law in 2003.

Kennedy’s decision specifies a procedure called intact dilation and evacuation, or "D and E," a variant on what the court called the "usual second-trimester procedure of dilation and evacuation."

Under the law, women would still be able to access certain kinds of second-trimester abortions but would not necessarily be able to have the procedure considered by their doctors to be the safest and best under the woman’s individual circumstances, said Vicki Saporta, president of the National Abortion Federation in Washington, D.C. She and other lawyers, doctors and advocates are still exploring the legal language to determine the precise reach of the law.

In 2000, according to the New York-based Guttmacher Institute, doctors performed 2,200 of the procedures that the court specifically banned Wednesday. Although intact dilation and evacuation is not performed before the 12th week of pregnancy, Ginsburg noted the blurring of the distinction between abortions performed before and after the point of fetal viability, which generally occurs between the 23rd and 25th week.

"For the first time since Roe, the court blesses a prohibition with no exception safeguarding a woman’s health," she wrote in her dissenting opinion.

Called the Partial-Birth Abortion Ban, the law–in contrast to the Supreme Court ruling–does not specify a medical procedure. Backers of the ban have maintained that it referred to a particular procedure used in only rare circumstances, which is also how the court interpreted it. But opponents say the wording of the law is so vague that it could apply to any abortion as early as 12 weeks.

Law Challenged Earlier Ruling

In 2003, Congress passed the Partial-Birth Abortion Ban Act as a direct challenge to the Supreme Court’s 2000 ruling in Stenberg v. Carhart, a case that scrutinized the Nebraska ban.

In that ruling, also decided by a 5-4 vote, justices cited the law’s lack of a health exception for the woman and its vague wording.

At the time, Kennedy was in the minority. In his dissenting opinion he argued that the Nebraska ban did not pose an "undue burden" on women seeking abortions and rejected the notion that all abortion restrictions must require health exceptions.

Kennedy stuck to that reasoning this time around, but with a change in the court’s composition, was in the majority.

Immediately after Bush signed the Partial-Birth Abortion Ban Act into law, three lawsuits–in New York, San Francisco and Nebraska–challenged its constitutionality. All three district courts held the law unconstitutional, rulings that were upheld in three federal appeals courts.

Nancy Northup, president of the Center for Reproductive Rights in New York, predicted that Wednesday’s decision will have a chilling effect on physicians, who face up to two years in prison for breaking the law. She also said it would unleash a wave of new bills at the state and federal level attempting to further restrict abortion.

"Make no mistake, today’s ruling takes us perilously close to a complete reversal of Roe v. Wade," Northup said in a statement. "And we should assume that this is only the beginning."

Some Women Vulnerable

Older women are especially vulnerable to the ban because they are more likely to have problematic pregnancies, and the results of prenatal tests such as amniocentesis are generally not released until mid-pregnancy, said Ellie Smeal, president of the Feminist Majority Foundation, an advocacy group in Arlington, Va. The law also puts younger women at additional risk, she added, because they are more likely to delay decisions about abortion because they often lack control over their lives or have inadequate funds.

Jennifer Baumgardner, an author and filmmaker of the 2005 documentary "I Had an Abortion," said she felt the court decision was "insensitive" to lower-income women, who increasingly face barriers in obtaining reproductive health care and family planning services.

"Poor women are more likely to be in a situation where they’re in a desperate search for abortion," she said. "This is already happening to poor women, the general lack of access for certain people and the indignity of impacting their lives and freedom."

While the court had protected women’s health in the past, Faye Wattleton, president of the Center for the Advancement of Women in New York, said it now appeared that women’s health was up for grabs.

"The reality is that women now must really dedicate themselves anew to become engaged in the political process," Wattleton told Women’s eNews. "We no longer have the privilege of being on the sidelines."

Reproductive rights advocates wasted no time in sending out e-mails about planned protest rallies. The Family Planning Advocates of New York State, for instance, mobilized almost immediately, calling a protest for yesterday afternoon at the New York State Capitol building in Albany.

–Cynthia L. Cooper also contributed to this report.

Allison Stevens is Washington bureau chief at Women’s eNews. Alison Bowen is a New York-based reporter with Women’s eNews.

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