New Court Begins Chipping Away
In a 5-4 decision yesterday, the Supreme Court dealt a damaging blow to women's rights, upholding a 2003 law that banned all mid-term abortions as early as 12 to15 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 exceptions for the health of the woman was an unconstitutional restriction. The ruling "clears the way for states to pass new laws" designed to discourage women from having abortions. "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 majority opinion, authored by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, dismissed the medical community's opinion and instead adopted political rhetoric intended to appeal to the right-wing base. Noting the deep hostility to women's rights contained in the majority opinion's language, Justice Ruth Bader Ginsburg, writing in dissent, said, "Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label abortion doctor. A fetus is described as an 'unborn child,' and as a 'baby,'...and the reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience.'" Reading her dissent aloud in a stone-silent courtroom, Ginsburg said the decision "cannot be understood as anything other than an effort to chip away" at a woman's right to choose to have an abortion.
NO MORE HEALTH EXCEPTION: In 2003, Congress passed, and 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 American College Obstetricians and Gynecologists had informed the Court that upholding the Ban would "chill doctors from providing a wide range of procedures used to perform induced abortions or to treat cases of miscarriage and will gravely endanger the health of women in this country." Yesterday, the women's health physicians group said, "This decision discounts and disregards the medical consensus [and] diminishes the doctor-patient relationship by preventing physicians from using their clinical experience and judgment."
FORCING WOMEN TO SUFFER: "The [Partial Birth Abortion Ban] act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth," 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. Eve Gartner of Planned Parenthood Federation of America said in response, "The idea that women could bring 'as applied' challenges literally as they're in the hospital bleeding or suffering some serious medical harm and need a banned abortion, the Court suggests well at that point the woman could bring a federal lawsuit. But just saying that shows how absurd and unworkable that remedy is."
ELECTIONS MATTER: 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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