Abortion Rights After Gonzales v. Carhart

^{Profile: Gonzales v. Carhart (2007)}

I made the mistake of actually reading the Gonzales v. Carhart ruling before writing about it, and as a result I've had a mighty strange week. National leaders on both sides of the aisle seem to see this as a portentous, earth-shaking ruling that will spell the end of Roe v. Wade. I don't get it, and I'll explain why in a minute.

But first, let's look at what the national leaders have to say. NARAL writes:

The Court has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women's health.

If the pro-choice movement sees broader implications, it's only natural for the president of the Christian Coalition to chime in with an ominous pronouncement of her own:

With today's Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.

Since most people, including journalists, don't have time to actually read the ruling, this kind of spin is all most people will ever hear about it. And that's unfortunate, because the ruling is extremely narrow, easy to comprehend, and firmly rooted in the language of Roe v. Wade, Casey v. Planned Parenthood, and other relevant precedents. It is not a threat to Roe v. Wade. It is not an attack on women. It is a narrow ruling, decided on rational grounds, that will most likely have no practical impact whatsoever on a woman's right to have an abortion.

This becomes clear when we read Justice Kennedy's own words:

The [Casey v. Planned Parenthood] Court reaffirmed what it termed Roe's three-part "essential holding": First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman's life or health. And third, the State has legitimate interests from the pregnancy's outset in protecting the health of the woman and the life of the fetus that may become a child ... Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government's legitimate interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the previability abortion right exists if a regulation's "purpose or effect is to place a substantial obstacle in the [woman's] path," id., at 878, but that "[r]egulations which do no more than create a structural mechanism by which the State ... may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose" ... Casey struck a balance that was central to its holding, and the Court applies Casey's standard here ...

The Court assumes the Act's prohibition would be unconstitutional, under controlling precedents, if it "subject[ed] [women] to significant health risks" ... Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court's precedents instruct that the Act can survive facial attack when this medical uncertainty persists ... This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court's conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's prohibition only applies to the delivery of "a living fetus."

It is worth noting that intact D&X, the procedure under discussion, constitutes only 0.17% of abortions--and it is not clear what kinds of cases make up that 0.17%. Intact D&X performed on a fetus that is already dead, for example, would not violate the law under discussion because the Partial Birth Abortion Act only applies in cases where the fetus is still alive. Intact D&X performed on a living fetus would remain legal in cases where the woman's life is in danger. So who, in reality, is affected by this law?

I've been doing considerable research this week trying to figure out why politicians on both sides of the issue tend to see this as a landmark case. Near as I can tell, it isn't. I've been trying to figure out why politicians on both sides of this issue seem to see this as a defeat for the pro-choice movement. Near as I can tell, it isn't. It is a ban on a rare procedure that may or may not yield any health benefits. If a comparably rare and nonessential form of surgery were banned in any other context than abortion, it's doubtful that the ruling would have even been newsworthy. What makes it newsworthy is the way that politicians have reacted to it.

I'm not alone in my view that Gonzales v. Carhart is a minor ruling. In an op-ed in yesterday's New York Times, Cambridge University professor David J. Garrow, author of the 1,064-page Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (University of California Press, 1998), urges us to look at the implications of the ruling itself:

[L]et’s not exaggerate what this ruling means. The Carhart decision is an extremely limited upholding of the federal ban, one that promises to affect very few abortion providers and only a tiny percentage of their patients. The most recent and reliable national statistics, from the Guttmacher Institute, show that only about 30 American doctors ever use the "intact dilation and evacuation" method that has now been criminalized. Only some 2,200 of the 1.3 million abortions performed annually in the United States involve the banned procedure.

Justice Kennedy also declared — repeatedly — that only purposeful violations of the prohibition can be prosecuted. What the law covers is the deliberate, almost-complete delivery of a living fetus, followed by a further intentional act that causes its demise. "If either intent is absent, no crime is committed," Justice Kennedy wrote.

Some folks will argue that the practical implications of the ruling don't really matter--that it's all about the legal reasoning--but actually, the implications of a ban are central to legal reasoning if one is using the "undue burden" standard established by previous Supreme Court precedent. If live intact D&X is a rare and unnecessary procedure, then a ban on live intact D&X cannot constitute an undue burden on a woman's right to have an abortion. It's as simple as that. This ruling, in other words, does not create new standards; it merely applies the old ones to a specific case.

The real implications of Gonzales v. Carhart are political. Already, pro-choice members of the U.S. Senate have written a Freedom of Choice Act that seems tailor-made for a Bush veto. And the verdict is great news for the frontrunners in both party presidential nominations. Rudy Giuliani, controversial among conservatives because of his support for abortion rights, scores points with Republicans by defending the ruling. Hillary Clinton, controversial among pro-choicers because of her support for parental notification laws, scores points with Democrats by condemning it. Meanwhile, women living in states where their right to an abortion actually is at risk are, as usual, completely ignored.

Here in Jackson, only a few miles from my home, is Mississippi's only abortion clinic--the Jackson Women's Health Organization. They never perform intact D&X. They never perform abortions of any kind after 16 weeks. Every year, they are subject to a new round of harassment in the form of right-wing legislation. They are threatened, picketed, and legislated against on a constant basis. The Jackson Women's Health Organization is, I stress, the only clinic in America's poorest state. And yet, somehow, I am supposed to see Gonzales v. Carhart as the real problem, and a symbolic piece of veto-friendly legislation as the real solution. As usual, politicians on both sides are playing games with the abortion debate while real women's lives hang in the balance. It is unfortunate, but serves as a reminder that politicians--no matter where they claim to stand--should never be allowed to co-opt the pro-choice movement. As activists, as citizens, and as human beings, we are responsible for finding the truth and speaking that truth to power. Nobody else can be trusted to do it for us.

See also:

• Gonzales v. Carhart and the Kennedy Coalition