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Supreme Court Bans an Abortion Procedure with Ideological, Patriarchal Ruling
Below on this page: The Court's Decision and Dissent | News Reports and Analysis | Reaction of Jewish organizations | Reaction from pro-choice organizations | Religious Right Celebrates Triumph, then falls to squabbling | Push for law codifying Roe v. Wade | Reaction from the medical profession | Ripples from decision reach states Background: On April 18, 2007 the Supreme Court ruled 5-4 to uphold a law banning a rarely used procedure known as dilation and extraction and criminalizing doctors who perform it -- regardless of whether they do so to save a woman's life or preserve her health. Wrote Justice Ruth Bader Ginsburg in the minority's dissent: "Today's decision is alarming... 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." The five men who constituted the majority gave joy to the Christian right with an opinion that substitutes their religious ideology for a physician's judgment and disdainfully trashes the principle of a woman's right to make her own health decisions. Supreme Court Upholds Ban on Abortion ProcedureBy David Stout, New York Times, April 18, 2007 WASHINGTON, April 18 — The Supreme Court narrowly upheld a federal law today banning a controversial abortion procedure, giving the anti-abortion movement one of its biggest legal victories in years. The justices ruled, 5 to 4, that a law passed by Congress in 2003 and signed by President Bush does not violate the Constitution by imposing an undue burden on a woman’s right to end a pregnancy. The majority said its ruling reflects the government’s “legitimate, substantial interest in preserving and promoting fetal life.” Continue. For the Times' expanded coverage page, click here. Denying the Right to ChooseEditorial, New York times, April 19, 2007 Among the major flaws in yesterday’s Supreme Court decision giving the federal government power to limit a woman’s right to make decisions about her health was its fundamental dishonesty. Under the modest-sounding guise of following existing precedent, the majority opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito — gutted a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings. It severely eroded the constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth. The justices went so far as to eviscerate the crucial requirement, which dates to the 1973 ruling in Roe v. Wade, that all abortion regulations must have an exception to protect a woman’s health. As far as we know, Mr. Kennedy and his four colleagues responsible for this atrocious result are not doctors. Yet these five male justices felt free to override the weight of medical evidence presented during the several trials that preceded the Supreme Court showdown. Continue. The Court's Decision and Dissent GONZALES, ATTORNEY GENERAL v. CARHART et al. [Text of the Court's Decision]Certiorari to the United States Court Of Appeals for the Eighth CircuitNo. 05-380. Argued November 8, 2006--Decided April 18, 2007* Following this Court's Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska's "partial birth abortion" statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual second-trimester procedure, "dilation and evacuation" (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska's, is a variation of the standard D&E, and is herein referred to as "intact D&E." The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull. Continue. Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.Today's decision is alarming .. 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, 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. Continue. Court's ruling emboldens abortion opponents to seek more restrictionsBy Julie Hirschfeld Davis, Associated Press, San Diego Union-Tribune, April 19, 2007 WASHINGTON – The Supreme Court's endorsement of the first federal curbs on an abortion procedure in a generation suggests that even with Democrats in control of Congress, efforts to preserve abortion rights may be losing ground. Both sides in the volatile abortion debate said they now expect a spate of efforts in several states to place further limits on abortion – and that a court reshaped by President Bush's conservative picks will be more willing to uphold them. Meanwhile, abortion rights champions expressed little hope that efforts to enshrine in federal law that a woman has a right to choose could succeed in Congress. Continue. High Court Decision Could Raise Abortion's Profile in Campaignby David Masci, Senior Research Fellow, Pew Forum on Religion & Public Life, April 19, 2007 Wednesday's 5-4 Supreme Court decision upholding a federal law banning a controversial abortion procedure may dramatically raise abortion's visibility in the presidential election campaign. The ruling, a victory for anti-abortion advocates, will almost certainly energize both sides in the abortion debate and prompt them to pressure presidential contenders to take clearer, less ambiguous positions. Traditionally, abortion has not often been one of the top issues in national elections. For instance, a survey conducted last year by the Pew Research Center for the People & the Press found that abortion ranked at the very bottom of a list of 19 issues that voters deemed important. Education, the economy and national security issues topped the list. Continue. Abortion ruling puts candidates on the spotColumn by Carla Marinucci, Scripps News Service, April 23, 2007 From the halls of Congress to the offices and watering holes where campaigns are shaped, politicians are feeling the tremors from a U.S. Supreme Court decision on abortion that threatens to shake up the competitive 2008 race for the White House. Continue. Reaction from the medical profession Risking women's healthOpinion Article by Kenneth C. Edelin, Boston Globe, April 22, 2007. Dr. Kenneth C. Edelin is emeritus professor of obstetrics and gynecology at Boston University and the author of the forthcoming book "Broken Justice: A True Story of Race, Sex, and Revenge in a Boston Courtroom." THIRTY-TWO years ago a Suffolk County jury in Massachusetts found me guilty of manslaughter in the death of a fetus during the performance of a legal second-trimester abortion. Continue. The Intimidation of American Physicians — Banning Partial-Birth AbortionMichael F. Greene, M.D., New England Journal of Medicine, April 23, 2007. Dr. Greene, an associate editor of the Journal, is a professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School and director of obstetrics at Massachusetts General Hospital, both in Boston. A Dutch oncologist was describing to an audience of American physicians in Amsterdam the circumstances under which euthanasia was performed in the Netherlands at a time when the practice was illegal yet widely used. Each act of euthanasia was reported, after the fact, to the local prosecutor, who investigated the case and routinely declined to prosecute any treating physician who had acted transparently and in the best interest of the terminally ill patient. The American physicians were incredulous that their Dutch colleagues were willing to place themselves at risk for criminal prosecution by providing care that might, on later review, be determined to have violated criminal law. The Americans had no confidence that their own judicial system would judge them fairly under similar circumstances, even if they had acted in good faith and in the patient's best interest. This lack of confidence that the U.S. judicial system would treat them fairly has cast a pall over those who practice reproductive medicine as they consider the recent decision by the Supreme Court, in Gonzales v. Carhart, to uphold the Partial-Birth Abortion Ban Act of 2003. The ruling creates an intimidating environment surrounding pregnancy terminations at more advanced gestational ages. The decision to pursue a second-trimester abortion is never taken lightly and usually results only after anguished discussions among the patient, her loved ones, and her health care providers. Once the decision has been made to perform a second-trimester surgical abortion, the last thing a provider needs is to have to worry that the procedure could potentially evolve into a criminal act if a fetus in breech presentation should slip out intact through a partially dilated cervix. But this is exactly the situation created by the partial-birth abortion bill. Continue. Government in MedicineComment by Jeffrey M. Drazen, M.D., New England Journal of Medicine, April 23, 2007 Although I am not a provider of reproductive medical services, I was alarmed to read of the recent decision of the Supreme Court in Gonzales v. Carhart. Why should I feel so concerned? The practical consequences of the "partial-birth abortion" bill are so far from my medical practice in pulmonary and intensive care medicine that the ruling should have no impact on me. Indeed, since most health care practitioners will not be directly affected by this decision, why should we care at all? It is because, as Charo1 and Greene2 point out in this issue of the Journal, with this decision the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine. In 2005, we all saw the disastrous consequences of congressional interference in the case of Terri Schiavo. In that case, the courts wisely decided that Congress should not be practicing medicine. They correctly ruled that wrenching medical decisions should be made by those closest to the details and subtleties of the case at hand. Such decisions must be made on an individual basis, with the best interests of the patient foremost in the practitioner's mind. It is not that physicians do not want oversight and open discussion of delicate matters but, rather, that we want these discussions to occur among informed and knowledgeable people who are acting in the best interests of a specific patient. Government regulation has no place in this process. In 1997, another editor of the Journal, Jerome Kassirer, took Congress to task for practicing medicine without a license.3 He cited a number of instances, including the passage of a forerunner of the bill that the Supreme Court upheld last week. With Gonzales v. Carhart, the judicial branch has regrettably joined the legislative branch in practicing medicine without a license. Click here for the original comment with sources. The Partial Death of Abortion RightsR. Alta Charo, J.D., New England Journal of Medicine, April 23, 2007. Professor Charo is a professor of law and bioethics at the University of Wisconsin, Madison, and a member of the board of directors of the Guttmacher Institute. On April 18, 2007, the Supreme Court signaled a significant change in abortion jurisprudence. It held in Gonzales v. Carhart that a federal statute outlawing the use of "partial-birth abortion" is constitutional, even though many members of the medical community believe that the procedure should be available when it is the safest option for terminating a pregnancy. No exception was made for protecting a woman's health; only a threat to a woman's life would excuse the use of the procedure. Absent that excuse, a physician who knowingly performs an intact dilation and extraction (D&X) is subject to 2 years in prison, a fine of up to $250,000, and monetary damages for psychological injury to the husband or parents of the pregnant woman. Ever since the 1973 decision in Roe v. Wade, it has been understood that states may regulate pre-viability abortion and outlaw post-viability abortion completely, provided that the rules protect both the life and the health of the pregnant woman. And in the 1992 decision in Planned Parenthood v. Casey, the Court reaffirmed this principle, requiring a health exception in bans of post-viability abortion and stating that regulations regarding pre-viability abortion may not impose an "undue burden" on women. This balance reflects the view that a woman's interest in preserving her own health should be protected more strongly than any state interest in preserving intrauterine life. The latest decision of the Supreme Court alters this balance and holds that requiring women to submit to an unnecessarily dangerous version of an abortion procedure (in cases in which D&X is deemed by a physician to be the safest option) is neither an undue burden on them nor a dereliction of the state's duty to guard women's health and personal autonomy. The decision thus opens the door to revisiting any number of state and federal efforts to restrict access to abortion services. Continue. Doctors Weigh Next Move on Legality of Abortionby Julie Rovner, National Public Radio, All Things Considered, April 19, 2007 The people most immediately affected by Wednesday's Supreme Court abortion decision are doctors who perform the procedure. Some say they remain uncertain exactly what the Partial Birth Abortion Ban Act does and does not allow. Other doctors warn that the Supreme Court has set a dangerous precedent that permits legislators to intrude into the practice of medicine. Deborah Oyer runs a clinic that provides family planning, gynecology and abortion services in Seattle. She says she does not purposely do the specific procedure she thinks is now illegal under the Supreme Court's ruling Wednesday — but she's not entirely sure. Continue. Reaction of Jewish organizations Groups revving up to fight ruling on late-term abortionBy Rachel Mauro, Jewish Telegraphic Agency, April 19, 2007 WASHINGTON (JTA) – Supreme Court decisions usually are considered final, but Jewish groups that favor abortion rights are taking this week's ruling upholding a ban on late-term abortions to lawmakers. The groups, which consider the April 18 ruling a rollback of the landmark 1973 Roe v. Wade decision that upheld abortion as a matter of privacy and a woman's choice, say they will now go to state legislatures and to Congress, and ultimately make it a matter for the 2008 presidential elections. "This isn't going to go away," said Phyllis Snyder, president of the National Council of Jewish Women, perhaps the most vocal group advocating for reproductive rights. "This is the beginning of a new fight now." Justice Anthony Kennedy wrote in his majority ruling that those opposing a 2003 U.S. law banning late-term abortions "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Kennedy said other procedures are available to women whose lives are threatened by their pregnancies. Reaction from Jewish groups was swift. Continue. Time to fight back against court assault on women's rightsOp-ed by Phyllis Snyder, president, National Council of Jewish Women, Jewish Telegraphic Agency, April 19, 2007 WASHINGTON (JTA) – The Supreme Court has made it clear that ideology trumps women's health in the nation's highest court. On April 18, the Supreme Court made it clear that respect for legal precedent is dead. Clear that Roe v. Wade's protections are no longer immutable. Clear that it doesn't mind letting its own self-described "moral concerns" trump constitutional protections. Clear that the religious right has ascended to the federal bench. Clear that it favors politics over safety and science, leaving doctors with fewer options – and women at risk for their health and safety. The Supreme Court delivered a devastating blow to women and women's health in its 5-4 decision to uphold the federal abortion ban in Gonzalez v. Carhart and Gonzalez v. Planned Parenthood. Since 1973, this is the first time an abortion ban that does not include an exception for a woman's health has been upheld. This marks a dangerous erosion of reproductive rights and health. Continue. Reform Jewish Leader Condemns Today's Supreme Court Ruling on Late Term AbortionsNews release, Religious Action Center of Reform Judaism, April 18, 2007 Washington, DC- In response to today’s Supreme Court ruling in Gonzales v. Panned Parenthood and Gonzales v. Carhart, Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, issued the following statement: Today’s ruling upholding the federal ban on late term abortions is a tragic attack on women’s reproductive rights. Again, the incremental chipping away at the rights established by the Roe v. Wade decision and affirmed in the Court’s previous ruling in 2000 overturning a state ban on this procedure, leads us closer to the full eradication of women’s reproductive rights. The Union for Reform Judaism was proud to join an amicus brief in support of Planned Parenthood, and it is clear that today’s ruling has perpetrated a great injustice upon every woman in America. Continue. Jewish Groups Face New Abortion LandscapeSupreme Court’s partial-birth ruling leads pro-choice groups to rethink their approaches.James D. Besser, New York Jewish Week via Highbeam.com, April 27, 2007 Jewish groups that support abortion rights are scrambling for new strategies after last week’s Supreme Court decision on late-term abortions that many fear will be the first big step in undoing Roe v. Wade. The 5-4 decision, which validated the 2003 federal Partial Birth Abortion Ban, will shift the focus of the abortion battle to states across the country, said Rep. Jerrold Nadler (D-Manhattan), a pro-abortion rights leader in Congress. “What this decision does is open it up for state legislators and city councils to bring up all kinds of abortion restrictions that would not have withstood constitutional challenge before,” he said in an interview. “Many legislatures are going to become really ingenious in devising new ways to restrict a woman’s right to choose. It’s going to be a real problem.” In their opinion, the majority “used some extremely paternalistic language about how abortions are harmful because of the regret and the mental health problems of the women, and therefore the state has an interest in preventing it,” Nadler said. Continue. Reaction from Pro-Choice organizations NCJW Denounces Decision on Federal Abortion BanNews release, National Council of Jewish Women, April 18, 2007 April 18, 2007, Washington, DC -- The National Council of Jewish Women (NCJW) today denounced the decision of the US Supreme Court to uphold a federal law banning an abortion procedure used in second and third trimester abortions to save the life and health of the woman. NCJW President Phyllis Snyder released the following statement: "The US Supreme Court has dealt a devastating blow to Roe v. Wade and the right of women to safe and legal abortions. Their decision in Gonzales v. Carhart guts the principle that laws governing abortion must protect the life and health of the woman. By so doing, the court has overturned 30 years of precedent, including a nearly identical case in which they ruled otherwise only seven years ago. Continue. U.S. Supreme Court Upholds Federal Abortion BanPlanned Parenthood, April 19, 2007 On Wednesday, the highest court in the country voted 5-4 to uphold the federal abortion ban passed by Congress and signed by President Bush in 2003. The ban criminalizes abortions in the second trimester of pregnancy that doctors say are often the safest and best to protect women's health... Planned Parenthood and women's health care providers have long told the public that if President Bush were given a free hand to nominate ideological hardliners to the court, the U.S. Supreme Court would undermine protections for women's health and safety. On Wednesday that warning came true. Continue.
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Coral Ridge Ministries Email, sent the day after the Court's decision |
Push for law codifying Roe v. Wade
News release, Rep. Jerrold Nadler, April 19, 2007
WASHINGTON, D.C. – Congressman Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, along with Senator Barbara Boxer (CA) today reintroduced the "Freedom of Choice Act." The legislation would for the first time, codify the rights guaranteed under the Constitution by Roe v. Wade. His statement on the introduction of the legislation follows: Continue.
To read the Freedom of Choice Act, "a bill To prohibit, consistent with Roe v. Wade, the interference by the government with a woman's right to choose to bear a child or terminate a pregnancy, and for other purposes," Click here.
News release, ACLU via Common Dreams, April 20, 2007
WASHINGTON – The American Civil Liberties Union today expressed its strong support for the Freedom of Choice Act (FOCA) introduced by Senator Barbara Boxer (D – CA) and Representative Jerrold Nadler (D – NY). This legislation would preserve women’s health and reproductive rights by protecting their right to privacy and ability to make their own reproductive choices.
This new legislation is especially important in light of yesterday’s Supreme Court decision upholding a federal ban on certain abortion procedures over the strong objections of the medical community, including the American College of Obstetricians and Gynecologists, an organization representing 90 percent of the country’s OB-GYNs. Continue.
Dems Seek to Codify RoeFocus on the Family, April 20, 2007
A day after the U.S. Supreme Court upheld the federal ban on partial-birth abortion, pro-abortion legislators introduced the Freedom of Choice Act, a bill to codify Roe v. Wade, the ruling that brought about abortion on demand.
It appears that Sen. Barbara Boxer, D-Calif., and Rep. Jerrold Nadler, D-N.Y., knew how the decision would go and had the legislation written and waiting. Nadler said it would "bar government, at any level, from interfering with a woman's fundamental right to choose to terminate a pregnancy." Continue.
Ripples from decision reach states
Jerry Markon, The Washington Post, April 24, 2007
The Supreme Court decision upholding the federal ban on a controversial abortion procedure started playing out in Virginia yesterday, as the justices ordered a Richmond-based appellate court to reconsider the state law it struck down barring the procedure.
In 2005, the U.S. Court of Appeals for the 4th Circuit overturned Virginia's ban on what opponents call "partial birth infanticide." A three-judge panel, citing Supreme Court precedent, found the measure unconstitutional because it lacks an exception to safeguard a woman's health.
But the Supreme Court reversed course last week, upholding the Partial Birth Abortion Ban Act passed by Congress in 2003. Yesterday, the high court followed up by vacating the 4th Circuit decision and sending the case back to Richmond for review, "in light of" the ruling last week. A similar appellate court decision striking down Missouri's ban on the procedure also will be reconsidered. Continue.
Adam Sichko, The St. Louis Post-Dispatch, April 24, 2007
Washington -- The Supreme Court sent a Missouri abortion case back to a federal appeals court on Monday, ordering it to apply last week's decision upholding a federal ban on a disputed abortion procedure.
As a result, a 1999 Missouri law banning a medical procedure called dilation and extraction -- referred to by critics as "partial-birth abortion" -- is expected to take effect after years of legal wrangling.
In a 5-4 decision last week, the Supreme Court upheld a ban on the procedure that President George W. Bush signed in 2003. Missouri's law and the federal ban are similar, though not identical. Continue.
Associated Press, St. Louis Post-Dispatch, April 23, 2007
Washington (AP) -- The U.S. Supreme Court today ordered that its decision last week to uphold the ban on a disputed abortion procedure must be applied to a long-delayed lawsuit in Missouri.
The two-sentence order threw out a 2005 ruling from the 8th U.S. Circuit Court of Appeals that struck down a Missouri ban on certain late-term abortions -- called partial birth abortion by opponents -- that lower courts had concluded lacked an exception for the health of pregnant women.
In a 5-4 decision last week, the high court said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed in 2003 does not violate a woman's constitutional right to an abortion. Continue.
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Supreme Court Ruling Brings Split in Antiabortion Movement