Supreme Court Upholds Abortion Ban
In Gonzales v. Carhart (Carhart II), Justice Kennedy wrote the opinion for the majority, which included Alito, Roberts, Scalia and Thomas. Justice Ginsburg (the only woman on the Court), in her dissent, asserted the ruling "cannot be understood as anything other than an effort to chip away at a right declared again and again by this court."
In a key area -- the requirement of a health exemption -- the Roberts Court has reversed Stenberg v. Carhart (Carhart I). In that prior decision (and the most recent one on abortion), the Court "held that where there is a dispute in the medical community about whether an abortion restriction could endanger women’s health, and where 'substantial medical authority' supports the position that it could, then the restriction must contain a health exception." (emphasis added)
In the Partial-Birth Abortion Ban Act of 2003, Congress defined, named and then banned something that is not a "medical term and is not recognized in the field of medicine."
Thus the Court has aligned itself with a conservative Congress and a conservative President bent on ignoring both medical testimony and previous Court decisions requiring medical exceptions to preserve Constitutionality. As a consequence, the Court has ruled that in a case of "medical uncertainty" (ie, lack of 100% unanimity), politicians have the right to decide which medical procedures are legal and which are illegal.
[The American College of Obstetricians and Gynecologists] objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women's health. In addition, ACOG objects to the Act's vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.
The Act had been challenged based on its language, not its application. Kennedy said this was not a valid challenge. Instead, the Court should consider challenges when "a condition has or is likely to occur in which the procedure prohibited by the Act must be used."
In her dissent, Ginsburg detailed errors of fact that had been presented as evidence. She also took issue with the conservative rhetoric Kennedy employed, as well she should have.
[T]he Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem" ... [thus] the Court deprives women of the right to make an autonomous choice, even at the expense of their safety ...
This way of thinking reflects ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited.
Six times, Kennedy uses the phrase "abortion doctor" to reference obstetrician-gynecologists and surgeons who perform abortions. Ginsburg calls this use of a "pejorative" a demonstration of "hostility to the right Roe and Casey secured."
In addition, the opinion refers to the fetus as an "unborn child" and as a "baby" -- non-medical terms with emotional punch. Finally, Ginsburg notes, "reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience'," more ammunition for her claim of overt hostility.
Writing for the SCOTUS Blog, Lyle Denniston foreshadows additional Congressional meddling into medical decisions:
Congress has been allowed to become a major player in the regulation of the medicine of abortion... And the Court, relying on a 1974 precedent that had to do with drug rehab as an alternative to time in prison (Marshall v. U.S.), has given a ringing endorsement to congressional prerogative in matters of medicine: "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad."
Read that again: the Court relied on a 1974 precedent that had to do with drug rehab as an alternative to time in prison in granting Congress the power to legislate in the event of medical and scientific uncertainties. This authority sweeps much further than abortion -- I can see climate change on the horizon.
However, it remains to be seen whether this decision is an all-out assault on Roe v Wade. After all, only two justices -- Thomas and Scalia -- are on record supporting its repeal.
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Comments
If aborting a baby by partially removing it from the womb is so immoral, what’s so moral about cutting it up inside the womb?
Women will die from these “moral” conservative ideas from five guys who are worried about women “regretting” their mistakes of aborting the fetus one way instead of another.
What they don’t seem to worry about is if she’ll be alive long enough to regret it from birth/abortion complications.
Hello, JM … your point has been overlooked in much of the reporting. As Jill writes, the legislation and the ruling “will probably not protect even one fetus.”
But it reverses prior Court rulings on that legislation must provide an exception for the life of the mother in order to be Constitutional. :-/
Shame on women, especially those Reagan Democrats who voted to protect the sanctity of marriage by voting in state after state to ban marriage to gays and lesbians. Choosing to vote the Republican conservative philosophy is a vote to protect the sanctity of life as well as the sanctity of marriage. Duh! You can’t be liberal on abortion and conservative on same-sex marriage when you always vote Republicans in office.
Men have absolutely NO right to tell women what can do to THEIR bodies and something that could in no way live outside the body. Abortion is such so multi-faceted…the woman could have been brutely raped, be 13 yrs old, molested, the mother’s life in danger…Who the heck are these old Catholic men to tell women what to do. It was your idea to separate religion from politics! Use scientific medical terms to dicuss this issue, not words you got from some priest at church that just got finished molesting some 8 year old boy!!!When you have been brutely beaten, gang-raped and end up pregnant–YOU sorry scum have the baby to remind you every day of the worst day of your life!! You make the decision when you have two other kids to raise and you could leave them motherless if the pregnacy is life-threating. It is up to the women and the doctor NOT you!!!
Wow, when i read this article i was shocked.
Elle i agree with what you say, abortion can not be decided by some 5 men that were given the right to rule on this issue, especially considering that United States population is only 25% catholic and catholics are getting 55% of the influence on a decision that affects everybody in our nation.
This is for you Alex,
It is such a disaster when a country that is suppose to be based on liberty ends up having this handful of men decide on what a woman should do with their bodies. Woman decide to have abortions for many different reasons and some of which are more physically and mentally stressing than others, and some take more time to think and decide whether or not to terminate the pregnancy, this is because many factors come into play. At the end of the day it is the woman who have to deal with the stress of deciding if they want to become a mother! Every woman should have the right to terminate their pregnancy for whatever their reasons may be. Having an abortion after the third trimester should not be decided by the courts but by the woman who is carrying. After all the women are the ones who would be responsible for that child. This act can possibly bring about alot of intentional miscarriages and harm to these unwanted unborn children. What are the courts going to decide then?