Setting Standards: The Supreme Court and Abortion

On February 21, 2004, the Supreme Court agreed to decide on whether the first federal law banning a method of abortion is constitutional.

The court will rule on whether a rare, late-stage procedure called dilation and extraction (D&X) is permitted under the Constitution. Abortion opponents call the controversial procedure "partial birth abortion;" others use the term "late term abortion."

The court’s decision represents a crucial step in the lengthy and heated battle over the issue of abortion, which both sides have waged through the courts, Congress, and public opinion.

Supreme Court Context

The court accepted the case in response to the Bush administration’s appeal of a decision invalidating the Partial-Birth Abortion Ban Act of 2003.

In 2004, a U.S. District Judge in Lincoln, Nebraska ruled that a law banning so-called partial birth abortion was unable to hold up to constitutional scrutiny. Judge Richard Kopf agreed with New York District Court Judge Richard C. Casey, who ruled against the federal abortion ban in August 2004 because it does not protect women’s health.

In 2000, the Supreme Court ruled the Nebraska state law unconstitutional for two reasons: imprecise language and women’s health. The majority of justices felt that the law uses vague language to ban a variety of abortion procedures, not just the dilation and extraction method.

Of course, vague language is not unconstitutional. But the majority of justices said that because the law was unspecific, it could have been interpreted as a ban on abortion procedures beyond D&X.

In essence, this means that the law violated the rights granted by Roe V. Wade, which secures a woman’s right to end a pregnancy before the fetus can live independently, or, before viability. As long as Roe V. Wade stands, the government cannot interfere with early-term abortions.

Women’s health

The Supreme Court’s second reason for declaring the Nebraska law unconstitutional was concern for women’s health. Like the Nebraska ban, the federal ban does not include a health exception. This means that a doctor cannot use the D&X method when a woman’s health is at risk, even if the doctor believes that D&X is the safest procedure.

The federal ban was the first time that Congress has ever banned a medical procedure. Under this law, doctors can go to jail for performing D&X.

In the brief submitted by the administration in the current case, the solicitor general Paul D. Clement says that the appeals court which overturned the ban did not give enough "substantial deference" to Congressional findings on the lack of a need for a health exception.

The plaintiffs have responded in their own brief that as Congress does not have "a particular expertise in the area of medicine," substantial deference is not necessary in this case.

In the new case, the court has agreed to review its decision in 2000, which overturned the Nebraska ban and found a health exception necessary.

Defining "necessary"

The ban’s supporters claim that D&X is never necessary. Ironically, the law does permit the procedure if a woman’s life is in danger.

Doctors disagree on the necessity of the procedure. Some feel that the procedure is a needed option for late-term abortions and some do not. The ban’s opponents say that this disagreement proves that the decision should be left up to doctors.

The ban’s advocates claim that a health exception would invalidate the law altogether since "health" can be regarded as mental, emotional, or physical. Since possible health risks are broad and varied, the health exception may amount to a loophole that allows doctors to perform D&X.

Setting Supreme Standards

Like every case that reaches the Supreme Court, the legal battle over abortion has traced a long and winding path through state and federal courts in which judges have ruled according to their personal philosophies and interpretations of the Constitution.

Throughout the process, both supporters and opponents of the bill have sought to frame the debate to their advantage by using provocative language and making emotional and moral appeals to the public. Advocates on both side of the abortion debate are savvy, well-organized, well-funded, and determined that their philosophies be the ones that prevail.

This particular case is important, however, because a Supreme Court decision becomes the law of the land -- establishing a standard, or precedent, which all courts must consider in subsequent rulings. Both opponents and proponents agree that the ban would be a strategic step towards overturning Roe v. Wade.

The timing of this case makes it interesting for another reason. When the court voted 5-4 that the Nebraska ban was unconstitutional, the majority included Justice Sandra Day O’Conner, long the crucial swing vote on abortion. In the upcoming case, Justice Samuel A. Alito Jr. will replace O’Connor. The case will be an important opportunity to see Alito’s views on the abortion issue- a topic that was discussed heavily during his confirmation hearings.

What’s the philosophy?

At play are competing philosophies about rights - women’s rights, reproductive rights, doctors’ rights, fetal rights, and court’s rights.

To determine your philosophy of the issue, consider all of these issues. How much power should a woman have over her own reproduction? What about the father? Should doctors or legislators decide the correctness of medical procedures? As technology makes it possible for younger newborns to survive without the mother, should our laws change? What role should the courts play in the abortion discussion?

And then make sure to that your Representatives know your opinions. Not only Supreme Court Justices, but each and every one of us has the ability to influence abortion laws if we stay informed and tell our representatives what we want them to do.

On February 23, 2006, lawmakers in South Dakota approved a bill specifically designed to challenge Roe and keep the issue in the courts. If it is signed into law, the ban will be even stricter than federal ban that the Supreme Court has agreed to review - making it a felony for any doctor to perform an abortion, except to save the life of a pregnant woman.

Your input matters

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Update Posted on: 3/5/2006