The real battle for abortion rights may be yet to come.
That’s what legal experts are telling pro-choice advocates in the wake of June’s Supreme Court ruling striking down Nebraska’s so-called “partial birth” abortion ban. The 5-4 decision was a victory for pro-choice forces, but it also may well have laid the groundwork for future challenges to abortion rights.
And the ultimate outcome may hang on a single Supreme Court justice’s interpretation of a single word: health.
In the recent Supreme Court case, Stenberg vs. Carhart, Nebraskan physician Dr. LeRoy Carhart challenged the state law that purported to ban D&X (an abbreviation of dilation and extraction), a method of abortion usually used after 13 weeks.
The Court ruled in June that the Nebraska law was flawed because the language was so broad that it would also outlaw D&E (an abbreviation of dilation and evacuation), the most common method of abortion used from 13 to 24 weeks, and because it failed to include an exception allowing the procedure to preserve the health of the woman.
Concern has focused on two opinions: those written by Justice Anthony M. Kennedy, who dissented, and Justice Sandra Day O’Connor, who concurred with the majority, but seemed to leave the door open to future challenges.
In his dissent, Kennedy, previously regarded as a moderate on abortion, likened D&X to “infanticide” and referred to Dr. Carhart by the pejorative term, “abortionist.”
This is particularly alarming because of Kennedy’s earlier views. He was a co-author of a 1992 Supreme Court decision, Planned Parenthood of Southeastern Pennsylvania vs. Casey that expanded government power to regulate abortion, but also said that government interference could not place an “undue burden” on a woman seeking abortion.
In Carhart, Kennedy seemed to back away from this position, emphasizing that the state was entitled to ban methods of abortion that presented a “greater disrespect for life.” He also rejected ceding to physicians, medical authorities, or even the courts, the power to decide on the most appropriate method of abortion, arguing that this authority should shift to the states, with their “superior fact-finding capabilities.”
In light of Kennedy’s reversal, Justice O’Connor is now seen as a potential “swing vote” that might tilt the balance of the Court against abortion rights in future cases. In Carhart, she stipulated that, in her opinion, had the Nebraska law been narrowly written to include only D&X, and had it included a health exception, it would have been constitutional.
Pro-choice advocates worry that O’Connor was in effect offering anti-abortion forces a “road map” to attempt to write “partial birth” abortion bans that would pass Supreme Court muster.
“It’s not a road the anti-choice forces want to travel,” argued Simon Heller, director of domestic programs at the Center for Reproductive Law and Policy and one of the attorneys who represented Carhart. He believes that nearly all the “partial birth” bans passed in 31 states are deliberately written in broad language because they are designed to ban most or all abortions, not just D&X.
Peter Rubin, professor of constitutional law at Georgetown University, agrees that a narrowly written D&X ban with a health exception would be unattractive to abortion foes.
“Even it’s rhetorical force would be limited,” he said, “because it would make clear that a woman’s health is more important than stopping abortion.”
But abortion opponent Dorinda C. Bordlee, a special assistant attorney general hired by Louisiana to handle legal appeals for its enjoined partial birth abortion ban, said that one line of attack may be legislation banning D&X, but with a health exception far narrower than the current standard. The current standard, set out by a 1973 Supreme Court in Doe vs. Bolton, defined a woman’s health as encompassing “physical, emotional, psychological, familial” factors, as well as her age.
Bordlee, a member of Louisiana Right to Life and Lawyers for Life, has proposed defining the term “health” in Louisiana’s “partial birth” abortion ban as limited to “significant long-term physical risks” to the woman. Such a law would probably be overturned, she said, allowing an appeal that would force the Supreme Court to reconsider Doe vs. Bolton and, she hoped, establish a new standard.
Whether O’Connor would find a narrowed definition of health acceptable remains to be seen.
In the meantime, anti-abortion forces are concentrating their efforts on the next election.
Priests for Life, a Roman Catholic anti-abortion group, has launched a campaign to convince voters, particularly Catholic voters, to vote for anti-abortion candidates.
“Anyone who identifies himself as “pro-choice” contradicts the teachings of the Catholic Church,” said Father Frank Pavone, national director of Priests for Life.
Anti-abortion advocates hope that a Republican victory in the fall will lead to anti-abortion judges being appointed to the Supreme Court when vacancies arise.
In a recent opinion piece published in the conservative Washington Times, Bordlee advised anti-abortion legislators to hold off on drafting any new legislation until after the election. “It would be wise to wait until after the election to see what kind of court we have,” she said.
Justices John Paul Stevens, William H. Rehnquist and O’Connor are all over 70.
Kristin Choo is a freelance writer based in New York.
Photo by Reuters.