A Review of the Supreme Court’s Abortion Ruling

In a decision that has far-reaching implications for women’s reproductive rights, the United State Supreme Court decided Gonzales v. Carhart, 127 S.Ct. 1610 (2007), in a 5 – 4 ruling and placed its stamp of approval on the restrictions incorporated in the Partial-Birth Abortion Act of 2003 (the “Act”). A ripple effect from this decision is already occurring with the passage of similarly restrictive state legislation in one state. Social workers need to be informed to be able to advocate effectively for access to safe abortion procedures for all women. This Legal Issue of the Month article will review the Court’s decision and its implications for women and NASW’s policy on reproductive choice.

Procedural Background

The Court’s April 18, 2007 decision combined two cases, one from Nebraska involving a group of physicians who perform second-trimester abortions, and one from California filed by Planned Parenthood and others. Both cases were filed in federal court and in both cases, the trial courts enjoined the Attorney General of the United States (then John Ashcroft) from enforcing a ban on a specific abortion procedure contained in the Act known as “intact dilation and evacuation (D & E)” and referred to by some in non-medical terms as “partial birth abortion.” The federal appeals courts affirmed these rulings in the Eighth and Ninth Circuits and the Supreme Court granted certiorari.

Federal Legislation

The Partial Birth Abortion Act of 2003 (the Act) provides criminal penalties for physicians (or others) who perform one method of a dilation and evacuation (D & E) abortion, but not the woman who undergoes such a procedure, 18 U.S.C.A. § 1531. The law uses non-medical terms to define the banned procedure as “partial-birth abortion.” Additionally, if such a procedure is employed, the patient’s husband (if she is married) or parents (if she is a minor) may sue for monetary damages. Physicians are prohibited from intentionally delivering the fetus to the point that the head has passed outside of the patient’s body or where the trunk has passed beyond the naval (in a breech presentation) and then performing an overt act that destroys the fetus. The legislation provides an exception to performing the banned procedure to protect the life of the woman, but not her health.

Supreme Court Decision

The majority, consisting of Justices Kennedy, Scalia, Thomas, Alito and Roberts, issued an opinion banning an “intact D & E” abortion, but permitting other D & E methods to be employed, although the record from the lower court presented testimony from physicians familiar with the medical procedure as to confusion and vagueness regarding exactly what is prohibited and what actions would trigger criminal liability.  The Court opined that it believed that there were specific benchmarks in the law making it clear as to what conduct would be subject to sanctions.  

Among the concerns presented by the Respondents regarding the intent requirement was the fact that it now becomes necessary to second-guess a physician’s decision making process with the emphasis shifting away from the primacy of protecting a woman’s health in such medical decisions. The Court acknowledged that the law affects both pre-viability and post-viability abortions and concluded that it did not impose a substantial obstacle to pre-viability abortions. The Court referred to medical decisions as a mere “preference” (* 1633) for one procedure over another. It determined that banning intact D & E does not “’subject women to significant health risks,’” although the Court acknowledged medical disagreement about this Point.  Dismissing concerns about respect for the health of the pregnant woman, the Court confirmed “the State’s interest in promoting respect for human life at all stages in the pregnancy,” as a basis for ignoring the health risks posed when alternative abortion procedures are mandated to meet the requirements of the law.

A strongly worded dissent was issued by Justice Ginsberg, who was joined by Justices Stevens, Souter, and Breyer. The dissent clarified that the Court’s decision does not take into account the nature of D & E procedures generally. The dissent expressed concern that the Court’s decision affirmed the Act’s prohibition of conduct that falls within an area where medical judgment is required, and serves to inhibit the exercise of professional medical judgment affecting the rights of women to receive necessary services. Physicians generally choose one method of abortion or another based on the health needs of the patient. The dissent characterized the Court’s decision as “alarming” and inconsistent with prior rulings that restrictions on abortion must have an exception for the health of the woman. The dissent highlighted the fact that the physicians who testified in Congress regarding the Act had no experience with the abortion method in question and that the Act’s passage was actively opposed by respected medical specialties including the American College of Obstetricians and Gynecologists. The evidence presented before the trial court had demonstrated that in some circumstances it was medically the best choice for the woman’s health to perform an intact D & E. Quoting from the Court’s previous decision in Stenberg v. Carhart, the dissent summarized this most recent decision:

“In short, the Court upholds a law that, while doing nothing to ‘preserv[e] … fetal life,’ … bars a woman from choosing intact D & E although her doctor ‘reasonably believes [that procedure] will best protect [her].’” *1647

NASW’s Policy

Social workers have long been involved in advocating for reproductive choice for all women. The NASW Code of Ethics guides social workers to “promote clients’ self-determination.” Standard 1.02. NASW’s policy statement, Family Planning and Reproductive Health states, “Self-determination means that without government interference, people can make their own decisions about sexuality and reproduction. It requires working toward safe, legal, and accessible reproductive health care services, including abortion services, for everyone.” (NASW, 2006).   

Analysis

Upon initial review, the Act appears to prohibit a method of abortion based on concerns about a procedure for removing a fetus and appears to provide a safety exception for women. However, upon closer scrutiny, the Act has no rational relationship to a legitimate state interest in either the health or well-being of women or fetuses. It narrows the range of safe options for women who seek a second-term abortion without any justifiable purpose. It randomly targets one abortion procedure and puts physicians who perform the banned procedures at risk of criminal or monetary penalties without furthering medical concerns for the patient. It arbitrarily singles out one medical procedure and opens the door for prosecution and civil lawsuits against physicians who then must defend medical decisions that involved consideration of various factors in a dynamic practice environment.

NASW and other advocates for reproductive choice will be challenged as a result of the Gonzales v. Carhart decision. The Freedom of Choice Act, (2007), is now being championed by women’s rights groups in Congress and social workers may contribute an important voice to these efforts. In addition, social workers should be alert to legislative initiatives at the state level that may seek to further impinge on women’s access to reproductive health care. Louisiana has become the first state to follow the federal lead, passing a bill similar to the federal Act that was signed by the Governor of that state on Friday, July 13, 2007. Pro-choice advocates may use an online tool to track legislation on a state-by-state basis at http://www.naral.org/choice-action-center/in_your_state/bill-tracker/

References

Freedom of Choice Act, S. 1173, 110th Cong., 1st Sess. (2007). Retrieved from http://thomas.loc.gov on July 16, 2007.

Gonzales v. Carhart, 127 S.Ct. 1610 (2007).

National Association of Social Workers. (2006). Family planning and reproductive health, Social work speaks: National Association of Social Workers policy statements, 2006–2009 (7th ed., p. 144). Washington, DC: NASW Press.

National Association of Social Workers. (1999). NASW code of ethics. Washington, DC: Author.  [Online]. Retreived from http://www.socialworkers.org/pubs/code/default.asp on July 2, 2007.

Simpson, D. (2007). La. first state to outlaw late-term abortion procedure. Chicago Sun-Time. [Online]. Retrieved from http://www.suntimes.com/news/nation/468690,CST-NWS-abort15.article on July 16, 2007.

Stenberg v. Carhart, 530 U.S. 914 (2000).

18 U.S.C.A. § 1531 (effective Nov. 2003).

Resources

NARAL Pro-Choice America (2007). Who decides? State bill tracker. [Online]. Available at http://www.naral.org/choice-action-center/in_your_state/bill-tracker/   

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8/17/2017
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