Chipping Away At Freedom

The Supreme Court dealt a damaging blow to women's rights, upholding a law that banned some mid-term abortions without any health exception.

In a 5-4 decision yesterday, the Supreme Court dealt a damaging blow to women’s rights, upholding a 2003 law that banned some mid-term abortions as early as 12 – 15 weeks without providing an exception for the health of the pregnant mother. The Court’s decision, which marked the “first time the justices agreed that a specific abortion procedure could be banned,” blatantly defied its own recent ruling in 2000, which said a mid-term abortion ban without health exceptions for the well being of the woman was an unconstitutional restriction. “For the first time in 30 years, the Supreme Court has sanctioned a law that does not protect women’s health and prohibits doctors from exercising their best medical judgment,” said Jessica Arons, the director of women’s health and rights program at the Center for American Progress.

  • The law upheld by the Supreme Court allows no exception for the health of the mother. In 2003, Congress passed, and President Bush signed, the “Partial Birth Abortion Ban Act.” In its passage, Congress refused to adopt an amendment proposed by Sen. Barbara Boxer (D-CA) that would have banned such abortions except in cases where “the medical judgment of the attending physician” determined the abortion was necessary to preserve the life of the woman or avert serious adverse health consequences. Rather than crafting appropriate law, conservatives appeared more interested in setting up a judicial showdown over ways to restrict the right to abortion itself. The Court’s decision now imperils the requirement for a woman’s “health exception,” which until yesterday, had survived long legal scrutiny.  
  • The decision laid down by the Court could delay care to women in health-threatening situations. “The [Partial Birth Abortion Ban] act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth,” Justice Kennedy wrote for the court. He added that the proper way to make a challenge, if an abortion ban is claimed to harm a woman’s right to abortion, is through an as-applied claim. “In effect, the decision deputizes district judges across the country to authorize or deny partial-birth abortions to pregnant women based on health considerations.” Practically speaking, Kennedy’s argument means the Court will consider the burdens of the mid-term abortion ban only if a woman is forced into a health-threatening situation, and the judiciary branch will examine such hardships on a case-by-case basis — a rule never imposed before because of the time limitations involved in terminating a pregnancy. The lack of this exception could lead some women to suffer from infection, hemorrhaging or infertility.
  • New justice Samuel Alito showed his true colors yesterday in one of his first votes on this key issue. The most important vote yesterday was that of the newest justice, Samuel Alito, appointed by President Bush after he won reelection to a second term in office. As a member of the 3rd District Court of Appeals, Alito had voted in July 2000 to strike down New Jersey’s ban on mid-term abortions. “The New Jersey statute,” he wrote, “lacks an exception for the preservation of the health of the mother.” When Alito was nominated by Bush to replace O’Connor, many of his supporters argued that his decision in this case “proved that he would not be reliably anti-choice.” He earned support in his nomination process when he said he “would not bring a political agenda to the court” and would be “respectful of precedent.” But, once presented with the opportunity to impose new ideological law, Alito grasped it, parting ways with O’Connor and his own previous judgments. The Washington Post’s Andrew Cohen writes, “You can spin this any other way you want but in the end it comes down to a simple matter of personnel. Justice Alito was willing and able to go in the law where his predecessor, former Justice Sandra Day O’Connor wasn’t.”

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