The Supreme Court

Limiting Abortion Rights

Since abortion was legalized in 1973 by the Supreme Court in its opinion on Roe v. Wade, state governments have been trying to limit its impact by drafting laws that control access to abortions. The most recent battles have centered around the controversial “partial-birth abortion” procedure.

Just the Facts

Partial-birth abortions, also known as D&X method, are performed in the second or third trimesters of pregnancy. While the procedures are rarely used, the anti-abortion forces have used graphic pictures to build a strong case against them. Laws to ban this late-term abortion procedure have passed in at least 25 states including Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, New Jersey, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wisconsin. Federal legislation passed Congress in October 2003 and President Bush signed it. A court challenge is expected because the law does not include an exception if the mother's life is in danger.

Many of the partial-birth abortion bills have been struck down in the courts. One case made it all the way to the Supreme Court—Stenberg v. Carhart in 2000.

Leroy Carhart, a Nebraska physician, filed suit in district court challenging the Nebraska law prohibiting “partial-birth abortion” unless the procedure was necessary to save the mother's life was unconstitutional. The law broadly defined “partial-birth abortion” as a procedure in which a doctor “partially delivers vaginally a living unborn child before killing … the child.” The law goes on to define killing the child to mean “intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the … child and does kill the … child.” This description could also fit a more common procedure called D&E.

Any doctor who performed this type of abortion could be charged with a felony and could have his or her license to practice medicine automatically revoked if convicted. Carhart said the law was unconstitutionally vague and placed an undue burden on both doctors and patients seeking abortion. The district court agreed with Carhart and ruled the law unconstitutional. The 8th Circuit Court agreed, so the state of Nebraska took the case to the Supreme Court.

The Supreme Court's 5 to 4 ruling was so convoluted that you almost need a roadmap to follow the opinion with its concurrences and dissentions. Justice Breyer wrote the Court's opinion and was joined by Justices Ginsburg, O'Connor, Souter, and Stevens. Stevens wrote a concurring opinion and was joined by Ginsburg. Ginsburg wrote a concurring opinion and was joined by Stevens. O'Connor also wrote her own concurring opinion. The dissenting side wasn't any clearer. Chief Justice Rehnquist wrote his own dissent, as did Justice Scalia. Justice Kennedy wrote a dissent opinion and was joined by Rehnquist. Justice Thomas wrote a dissenting opinion and was joined by Rehnquist and Scalia. Probably safe to say there wasn't much agreement in the case conference for this one.

Basically what all the mess showed is that the court is not ready to overturn Roe v. Wade with its current membership and the key reason for that is the belief that any law that bans abortion after a fetus is viable must include a health exemption.

Justice Breyer wrote in the Court's opinion:

“The upshot is a District Court finding that D&X obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of medical opinion over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these circumstances, the Court believes the law requires a health exception. … Doctors often differ in their estimation of comparative health risks and appropriate treatment. And … 'appropriate medical judgment' must embody the judicial need to tolerate responsible differences of medical opinion. For another thing, the division of medical opinion signals uncertainty. If those who believe that D&X is a safer abortion method in certain circumstances turn out to be right, the absence of a health exception will place women at an unnecessary risk. If they are wrong, the exception will simply turn out to have been unnecessary.”

Living Laws

Any state or federal abortion law that does not provide an exception for a case in which a woman's health is threatened would likely be held unconstitutional if heard by the current makeup of Supreme Court justices.

Breyer also wrote that the law did not clearly differentiate between the D&X procedure and the more common D&E procedure. Therefore he concluded that, “In sum, because all those who perform abortion procedures using the D&E method must fear prosecution, conviction, and imprisonment, the Nebraska law imposes an undue burden upon a woman's right to make an abortion decision.” This problem of legal definition is found in most of the state laws, so many are being challenged if they haven't already been challenged.

Since Justice Thomas attracted the most joiners, I'll quote from his dissenting opinion. He wrote:

“I will assume, for the sake of discussion, that the category of women whose conduct Nebraska's partial-birth abortion statute might affect includes any woman who wishes to obtain a safe abortion after 16 weeks' gestation. I will also assume (although I doubt it is true) that, of these women, every one would be willing to use the partial-birth abortion procedure if so advised by her doctor. Indisputably, there is no “large fraction” of these women who would face a substantial obstacle to obtaining a safe abortion because of their inability to use this particular procedure. In fact, it is not clear that any woman would be deprived of a safe abortion by her inability to obtain a partial-birth abortion. More medically sophisticated minds than ours have searched and failed to identify a single circumstance (let alone a large fraction) in which partial-birth abortion is required. … And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.”

No doubt more cases dealing with the subject of abortion will find their way to the Supreme Court. The battle lines have been drawn and there is no sign the war is over.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.