Published on
McClatchy Newspapers

Abortion Decision Could Pave Way for More Restrictions

Michael Doyle

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.


Never Miss a Beat.

Get our best delivered to your inbox.

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.


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.

Our pandemic coverage is free to all. As is all of our reporting.

No paywalls. No advertising. No corporate sponsors. Since the coronavirus pandemic broke out, traffic to the Common Dreams website has gone through the roof— at times overwhelming and crashing our servers. Common Dreams is a news outlet for everyone and that’s why we have never made our readers pay for the news and never will. But if you can, please support our essential reporting today. Without Your Support We Won't Exist.

Please select a donation method:

Share This Article