Roe v. Wade May Not Be Safe

This thorough review of the 2007 Supreme Court decision I wrote last May seemed appropriate to post today, the 35th anniversary of Roe v. Wade.
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Judgment day, long-awaited by many conservatives, arrived April 18 as the U.S. Supreme Court held that the Partial Birth Abortion Ban Act is valid. Using sometimes circuitous and suspect arguments and logic, the majority of the Court reversed the judgments of the Courts of Appeals for the Eighth and Ninth Circuits, stating that the ban was not void for vagueness and does not impose an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception for the mother.

“Today’s decision is alarming,” said Justice Ginsburg in her dissenting opinion, for which she was joined by Justices Stevens, Souter and Breyer. “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 (ACOG). It blurs the line, firmly drawn in Casey (Roe v. Wade) between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”

What is at stake, Ginsburg stated, is a woman’s “control over her [own] destiny,” as recognized by previous courts. A woman’s ability to realize her full potential is intimately connected to her ability to control her reproductive life. And a woman’s autonomy, she argued, is needed for her to enjoy equal citizenship. The current case, known as Gonzales v. Carhart, is the first case on abortion to be decided by the Supreme Court since the only other female justice, Sandra Day O’Connor, retired.

In the first footnote following her 10-page dissent, which was nearly as long as the majority opinion, Ginsburg noted the term “partial-birth abortion” is not recognized or used by the medical community. Doctors refer to it as dilation and extraction (D&X) or intact dilation and evacuation (intact D&E). Because the procedure banned in the 2003 legislation does not have a medical definition, the majority opinion interpreted the term “partial-birth abortion” in sometimes vivid detail.

The majority took great lengths to describe a procedure used in only 10 to 15 percent of the 1.3 million abortions performed in the United States each year after the first trimester, as most are performed in the first three months. The majority opinion stated that first trimester procedures and other types of late-term procedures would still be legal and are not included in the Act. It also explained that a “partial-birth” abortion is a variation of a standard D&E.

But the Act goes beyond delineating which procedures are allowed and which are not by criminalizing the procedures they defined in it. Any doctor who performed an abortion that might meet the Court-proscribed definition could be fined or imprisoned, or both. To alleviate concerns or remedy offenses, the majority stated that a defendant – or doctor – accused of such an offense could seek a hearing before the State Medical Board to determine whether the conduct was necessary to save the life of the mother.

To make sure that doctors know what they are allowed to do and not do for their patients, the majority defined the criminal actions as follows:

“The term ‘partial-birth abortion,’ (1) means an abortion in which the person performing the abortion --- “deliberately and intentionally, (A) vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside of the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and “performs the overt act, other, (B) than completion of the delivery, that kills the partially delivered living fetus.”

Claiming to reaffirm “Roe’s essential holding,” the majority opinion recognized a woman’s right to choose to have an abortion before viability and to obtain it without undue interference from the State. But their opinion withheld the State’s right to restrict abortions after fetal viability because “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

One key point made by the majority was that “the Act expresses respect for the dignity of human life.” Also, the “government has an interest in protecting the integrity and ethics of the medical profession.” And, the “government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” In addition, the fact that the Act may have the “incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”

The majority expanded on its ‘respect for human life’ position by condemning the extinction of life whether by abortion, infanticide or euthanasia and expressing great concern for the mother’s emotional well-being which finds “an ultimate expression in the bond of love the mother has for her child.” The majority said its decision would aid women rather than imposing significant health risks to them because safe methods of abortion would still be available.

“We reject the contention that the congressional purpose of the Act was to ‘place a substantial obstacle in the path of a woman seeking an abortion,’” the majority opinion stated.

In her dissenting opinion, Ginsburg said the medical information used by the majority was inaccurate. She said there is evidence that an intact D&E is safer for the woman than other methods in many cases. “Pregnant women’s health would be jeopardized under the Act,” she wrote, based on the testimony of physicians and nine professional medical associations.

Ginsburg also attacked the logic of the majority opinion regarding its attempt to differentiate between methods used for abortion on the basis that one is less humane or gruesome than another. She criticized the majority’s comments about a woman’s “fragile emotional state” stating it “reflects ancient notions about women’s place in the family and under the Constitution.”

“In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational,” Ginsburg wrote. “In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court – and with increasing comprehension of its centrality to women’s lives.”