Abortion Decision Could Pave Way for More Restrictions
WASHINGTON - Every Supreme Court opinion has an afterlife, especially when it comes to abortion.
A closely watched decision last month upholding a federal ban on so-called partial birth abortions is just starting to populate the legal landscape. It will take years for all the Gonzales v. Carhart consequences to reveal themselves fully, but some implications are coming into focus.
States can try out new pre-abortion requirements, including anti-abortion messages to pregnant women. Some specific techniques might be targeted. New kinds of hurdles may be erected. As long as they can’t be considered an “undue burden” on many women, the rules might survive.
Justice Anthony Kennedy seemed to bless many such efforts in his 39-page majority opinion in Carhart, which was issued April 18.
“The state’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers and society as a whole of the consequences that follow from a decision to elect a late-term abortion,” Kennedy wrote.
In other words: The court will look kindly on states that require a “dialogue” about abortion with pregnant women. Shaping the content of that dialogue will be one goal of anti-abortion advocates.
“I think that this means that a vast array of regulations are likely to be upheld,” Duke Law School Professor Erwin Chemerinsky predicted. “Certainly this will embolden states to adopt more laws regulating abortions.”
“The court has indicated pretty strongly that a state’s interest in protecting a pending life is in ascending status,” said Janet Crepps, the acting director of the domestic legal program for the Center for Reproductive Rights.
A woman’s right to abortion will remain intact. At present, Chemerinsky said, it’s likely that “there are not five votes to overrule” the 1973 Roe v. Wade ruling, which found abortion rights rooted in constitutional guarantees of privacy.
The Carhart consequences could be more subtle and insinuating.
For instance, more states might follow South Carolina’s lead in considering requirements that pregnant women view fetal ultrasounds before deciding to abort. Missouri already is considering the idea.
More states could build on Nevada’s and Wisconsin’s lead in mandating pre-abortion counseling about possible adverse psychological effects, but with even more pointed language. New kinds of mandatory waiting periods might be tried, beyond the 18- to 24-hour wait that some two dozen states now require.
Still other tactics might arise. For instance, a state could try to require women to listen to the fetal heartbeats before proceeding with abortions.
There’s no guarantee that such new tactics would survive legal challenges, but their prospects appear brighter now.
“I think we’re going to see a lot of bills going back to mandated delays and biased counseling,” Crepps predicted. “I suspect that within the next year, we’ll see a landslide.”
The Carhart decision also could raise the Supreme Court’s visibility as an issue in next year’s presidential campaign.
Usually the court barely ranks an asterisk when voters are asked what issues matter most to them. Still, the 5-4 Carhart decision points to the changes on the court since two new members joined in 2005 and 2006. The politically attuned probably will note that the Carhart ruling followed former centrist Justice Sandra Day O’Connor’s departure and the arrival of reliably conservative Justice Samuel Alito.
The decision may be the Supreme Court’s last abortion ruling for a while.
None of the 13 cases scheduled so far to be heard in the 2007-08 term, which begins next October, involve abortion. While the court eventually will add 60 or 70 more cases, no abortion-related case appears obviously ripe for picking.
Substantively, Kennedy’s Carhart decision upheld the Partial-Birth Abortion Ban Act, which Congress passed in 2003. The law covered about 2,000 of the estimated 1.3 million abortions performed annually in the United States.
Called by physicians an “intact dilation and extraction,” and called by opponents a “partial-birth abortion,” the procedure occurs late in the second trimester of pregnancy.
The doctor first dilates the woman’s cervix, then uses forceps to start extracting the fetus. The process, which was described in much detail during the early arguments before the court, gave Kennedy a chance to make a point.
“Physicians reach into the cervix with forceps and crush the fetus’ skull,” Kennedy wrote in his painstakingly detailed opinion. “Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it.”
Kennedy’s graphic language hints at the direction that states may take with counseling and consent laws. Part of the government’s dialogue with pregnant women, he seems to suggest, can be designed to stop them cold.
Look to St. Louis for one of the first tests of this proposition.
There, the 8th U.S. Circuit Court of Appeals is weighing South Dakota’s strict informed-consent law. Some 28 states have informed-consent requirements, mandating pre-abortion counseling, but none wants to counsel as aggressively as South Dakota.
“The abortion will terminate the life of a whole, separate, unique, living human being,” South Dakota women must be told, according to the state’s 2005 law. Moreover, the woman must be told that she “has an existing relationship with that unborn human being and that relationship enjoys protection under the United States Constitution.”
So far, judges have ruled that the South Dakota law violates physicians’ free-speech rights, because it compels them to mouth the state’s ideological message. Judges also have determined that it places an “undue burden” - the key phrase in all these cases - on a woman’s right to an abortion.
After a mid-April hearing, 11 judges from the 8th Circuit are considering whether to give South Dakota’s law a green light. Theoretically, the case could reach the Supreme Court during the 2007-08 term once it’s decided by appeals court.
The Carhart decision also could reinforce restrictions on specific abortion techniques and definitions. There’s an invitation in the court’s observation that a state “may use its regulatory power to bar certain procedures . . . in order to promote respect for life, including life of the unborn.”
Look to Cincinnati for an early test of how the new boundaries may be pushed.
There, the 6th U.S. Circuit Court of Appeals is considering a challenge to Michigan’s “Legal Birth Definition Act,” which declares that a fetus becomes a legally protected person once “any portion” shows from the woman’s body. In the eyes of the law, what may have started as an abortion then becomes murder.
This goes further than the federal law, which specifies that either the “entire fetal head” or “any part of the fetal trunk past the navel” must show before an abortion would be banned.
Even with the Supreme Court’s latest ruling, Michigan’s law might not survive.
Kennedy repeatedly noted the federal law’s use of clear “anatomical landmarks” in defining the banned partial-birth procedure. It’s a sign of how many legal tangles still remain that both sides in the Michigan case have filed papers claiming that the Carhart decision supports them and undercuts their opponent.
SOME ABORTION CASES TO WATCH:
Case name: Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds.
Location: 8th U.S. Circuit Court of Appeals, in St. Louis.
Issue: Does South Dakota’s strict informed-consent law place an undue burden on a woman’s right to an abortion? The 2005 law requires that physicians tell women that abortion will “terminate the life of a whole, separate, unique, living human being,” among other things.
Case name: Northland Family v. Cox
Location: 6th U.S. Circuit Court of Appeals, in Cincinnati.
Issue: Does Michigan’s “Legal Birth Definition Act” go too far beyond the kind of abortion ban that the Supreme Court recently upheld? Michigan’s law prohibits abortions in which “any portion” of a whole fetus has exited the woman’s body.
© 2007 McClatchy Washington Bureau and wire service sources.
…again the twisted logic of the right-wing loonies shows its face. “Abortion is the killing of innocent life,” but its ok to send young men and women to “kill innocent life” in Iraq.
If America was a patient, it would be diagnosed with schizophrenia. To embark upon deadly prison sentences (and capital punishment), along with a bloated military, that like a bully, looks for conflict (while arming the world to ensure that very outcome!)and then champion “right to life” is almost the substance of bad comedy. Granny D wrote the best analysis of this mindset I’ve ever read. To paraphrase she suggested that the fundamentalist types who never give themselves freedom to live resent those who do. They identify with the coiled up fetus who represents innocence, the lives they’ve never let themselves live. They defend that as if defending a portion of themselves that has atrophied. They resent those who Do live freely. And of course the chilling lines from Easy Rider, “They talk to you a lot about freedom; but a really free person scares then, and when they’re scared, they’re dangerous.” Lastly, it’s interesting how women’s vaginas (i.e. female sexuality) carries such gravity in ALL fundamentalist societies. The more power is squeezed to the top portion of the inverted authoritarian pyramid, the more those at a loss of power (men) feel the need to control those they can (women). There IS no original sin. Learning to love on this wounded planet is the thing that will save us, and its conjugal expression absolutely terrifies those that would have humanity subjugated to the old gods of war, poverty, despair and depravity. This new cycle of repression (only now getting fully underway) will eventually yield to a global revolution where values that truly favor life and life’s living participants will be universally embraced.
Fleeto: I agree that those who applaud our pre-emptive wars are wrong, but I disagree that this makes saving fetuses wrong. If, that is, the proponents are the same people– and sometimes they are not.
I oppose abortion. It is about as stupid as a form of birth control you can get. Disease can be spread using this form of birth control.
However, legal or not there will be abortions. I would like to see free sterilization for any adult who wants it. Access to other forms of birth control is also crucial.
But the biggest thing we need to do is support people with education, health care, and good job prospects. Women who are not desperate and understand that they and their child will be ok whether they keep the child or put it up for adoption will not be as likely to want an abortion.
The legal ban on the relatively rare “intact dialation and extraction” procedure is horrible. The medical reasons surrounding such late term abortions usually involve personal tragedies, often medical emergencies that won’t allow for a legal process of application for a health exception. There will be some deaths and many permanent injuries each year until this is reversed.
It is not immoral to have an abortion. After all, half of pregnancies end in miscarriages why should we be upset if humans abort after careful thought?
Legal, safe abortions should be available to all women. The bottom line is that desperate women will resort to abortion-legal or not. We are already about 3-4 billion people beyond sustainable carrying capacity of the planet. If a woman prefers not to bring another child into the world under such circumstances so be it.
It would be better if contraception was more broadly available to all in the world rather than armaments which are pretty ubiqitous. I guess contraception is not as profitable as arms for killing people by warring. It seems worse way to control our numbers than abortion.
The Catholic church and other conservative groups are dooming Homo sapiens to a terrible future of chaos as our energy resources falter. The presence of Catholics on the Supreme Court is a downer for women and concerned ecologists everywhere.
Abortion is not a form of birth control. Condoms, IUD’s, things that are designed to prevent conception are birth controls. Abortion is a horrid choice for a person to have to make, it can also be a relief. Late term abortions are understandable, would you really want to go through the pain of childbirth only to deliver a corpse? Think for a while, place yourself in the shoes of a woman who’s found out that the fetus she carries has no brain, no heart, no lungs or some other defect that prevents the thing from living an hour outside the womb… Hell, as a man I can say that without any doubt that were I to become preggers, that any fetus in me would be aborted the day after I found out that I carried one. Hmmm, maybe I would use abortion as a form of birth control…
Although I do not believe that abortion is moral, I object to laws that are enforced only against the poor.
I am 71 and old enough to remember when abortion was supposed to be illegal. In fact, those that did not believe in abortion did not have one. For the others: If they were rich, they did as they please, as always. Middle class people budgeted for a safe, albeit illegal, abortion and somehow never thought that the law applied to them. The poor either had children that they did not want or had resources to care for or else they had cheap and sometimes fatal abortions. The same thing will happen again. There is no way to enforce a law against abortion.
In an ideal world, abortion would be unthinkable rather than illegal. We do not live in an ideal world.
I sometimes see messages that ask “How many abortions have been performed since Roe vs Wade?” I sometimes reply “How many were performed before Roe vs Wade?” My comments last about 5 minutes before they disappear. People do not want to see that a law is not a solution.
The FACT is that almost all abortions are BIRTH CONTROL.
The other reasons - health of the mother etc. are good anecdotal arguments but not the usual reason.
listen up shakker - abortion is NOT a form of birth control except perhaps for those who keep insisting that it is…
Why can’t we have a national vote for women and women only who are of a child bearing age. Why do we insist on men in suits making decisions for something they can never know? Should women make decisions for all men? After the vote, whatever the outcome, the law will be permanent.
thinkingperson wise up - The vast majority of abortions are birth control.
The mother and child are healthy, no rape, no incest.
The pregnancy was caused by birth control failure or carelessness.
The purpose of the abortion is to avoid embarrassment, financial hardship, or mere inconvenience.
ALL I am saying is lets use education and effective birth control to avoid as many unwanted pregnancies as possible and remove the fear of financial hardship and embarrassment from pregnancy.
I think it is pointless to prohibit abortion with one hand while creating the desperate conditions that contribute to unwanted pregnancies with the other.
The absolute bottom line, in my opinion, is that one’s sexual activity and the resultant pregnany or non-pregnancy, ought to be no gosh darn business of anyone other than those participating in said sexual activity! Why, oh why is it YOUR business, or Justice Kennedy’s business, or anybody else’s business? Let’s just keep our collective noses out of everybody else’s bedrooms, and stop trying to be the arbiters of morality for the whole freakin’ world!
I agree with D Decker this person is exactly what I have been trying to tell people. I think eventually they are not going to stop treating woman like they are ten years old. its going to get to the point that woman maybe better off by seeking steralization so they dont have to be bother with this. It seems that a woman doesnt even count when she becomes pregnant. Who wants to go through that??? I ask why do men feel they have to decide for woman???. I think this country really want to see woman go back to the days of when they just stood around haveing babies that they dont love or want to take care of. It seems we are going back to those days.
The abortion issue, like the gun issue, is just pure demagoguery that the Republicans use to recruit useful idiots to contribute to them, to work for them, and to vote for them.
Note that sincere Christian conservative candidates, Brownback for example (I believe he is sincere but I am open to correction on that), have virtually no chance of ever being elected President. The Republican “pro-life” candidates that are nominated, e.g. Bush, are simply demagogues who are supported by Wall Street and K Street to do the bidding of predator corporations and the ultra-wealthy. Such politicians only do the minimum amount to please the Religious Right so as to maintain their support.