If you thought the new Supreme Court would be bad for women’s rights, you were right. In an April 18th decision the U.S. Supreme Court upheld a federal ban on a widely-used abortion procedure. The decision was extraordinary in that a similar law came before the court in 2006 and was struck down by the court in a case called Stenberg vs. Carhart.
Feminist groups denounced the new 5 to 4 decision and said the law is designed to restrict women’s ability to get safe abortions. Additionally, the decision itself seemed aimed at providing arguments should the court wish to further restrict abortion in the future. For example, the decision mentions several times that the state has “a legitimate and substantial interest in preserving and promoting fetal life.”
Andrea Costello, lawyer with the Center for Constitutional Rights and organizer with Redstockings of the Women’s Liberation Movement says, “The Court’s conservative majority leaves women out of the equation and allows the state’s supposed interest in ‘promoting fetal life’ and ‘life of the unborn’ to trump women’s right to equality and to control the direction of our lives. This is outrageous because women are the ones that become pregnant and should be able to make our own decisions about if, and when, to have children. Justice Ginsburg had it right when she forcefully pointed out that this decision attempts to push women into a time where we lacked full and independent legal status under the Constitution.” (www.redstockings.org)
During their confirmation hearings, the new justices appointed by George W. Bush, Samuel Alito and John Roberts, professed great respect for the principle of “stare decisis” (letting previous court decisions stand). But the Gonzales decision basically overturns the Stenberg decision made just a year ago, and contradicts the basis of a whole series of abortion-related cases going back to the early 1970’s.
Justice Ruth Bader Ginsburg, the only woman on the court, wrote the dissent, which was joined by Justices Souter, Stevens, and Breyer. She blasted the majority opinion, writing:
“Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. 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… for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”
She characterized the court’s decision as a throwback to when women were not full citizens. “Women, it is now acknowledged, have the talent, capacity, and right ‘to participate equally in the economic and social life of the Nation.’ Their ability to realize their full potential, the Court recognized, is intimately connected to ‘their ability to control their reproductive lives.’ Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Ginsburg concluded, “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,” a right she says the court has affirmed “with increasing comprehension of its centrality to women’s lives.”
The majority’s opinion seemed to be stretching to find reasons to uphold the law. It stated that the law’s “prohibition would be unconstitutional … if it subjected [women] to significant health risks.” Numerous members of the medical establishment testified in various cases before appellate courts that the D&X procedure is often the safest for the woman, while others said D&E was also safe. The court’s majority claimed that since “both sides have medical support for their positions,” the legislature could ban it. This bizarre finding accompanied a wholly new argument in which the court claimed that “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.” But this statement doesn’t lead the opinion anywhere, since the opinion claims (against the testimony of doctors) that D&X abortions are unnecessary and can in all cases be replaced by other abortion procedures. Watch for this bit of unsupported psychobabble to pop up in later opinions.
The court also tries to play doctor, arguing that since the ban applies to fetuses partially delivered while alive, killing the fetus in the womb with an injection might solve a doctor’s dilemma. The court cites doctors who do this. The dissenting opinion points out that medical testimony submitted in the case said this injection procedure is “almost always inappropriate to the preservation of the health of the woman” and “In some circumstances, injections are “absolutely [medically] contraindicated.”
The decision mentions several times that the state has “a legitimate and substantial interest in preserving and promoting fetal life,” and claims that this is “a central premise of Casey.” The problem is, the 1992 Casey decision also said that before fetal viability, “the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Casey itself watered down Roe vs. Wade, but not as disastrously as the court is claiming.
As a result of this decision, the federal ban will take effect in May. Doctors may now feel that they are at risk of investigation when doing second trimester abortions (12 weeks or more). Even if they are obeying the law, this will be no guarantee that a grand jury will not be called by a malicious prosecutor, dragging clinic staff before a closed session to testify in detail about helping with this or that abortion.
This can only add to the tension and difficulty of doing abortion procedures in a country in which doctors are threatened and killed and clinics are bombed or driven out of business by legal or IRS targeting. For example, in Florida, in addition to the murders of Drs. David Gunn and John Bayard Britton, the abortion clinic in Ocala was bombed in 1989, Dr. James Pendergraft, an Ocala obstetrician who provided abortions at 3 Florida clinics, was jailed on trumped-up charges in 2001, and the Gainesville Women’s Health Center received frequent IRS scrutiny.
In addition to the pressure it puts on doctors, the decision also looks like an invitation to state legislatures to pass more restrictive laws and see what the court will uphold. The history of abortion rights since the high point of the women’s liberation movement has been to slowly circumscribe rather than to ban outright. As the Casey decision stated, “overruling Roe’s central holding would … seriously weaken the court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” In other words, not only would the flip-flop seem ludicrous, people wouldn’t stand for an outright ban, and therefore the court couldn’t overrule their previous decision. It will be up to the feminist movement to make sure this court, too, doesn’t become emboldened after this decision and imagine that it can get away with further weakening our rights.