Supreme Court Upholds Partial Birth Abortion Ban
G Note 2015-12-22
Welcome to G Note, the new blog associated with the Harvard Journal of Law and Gender.
Last Wednesday, in Gonzales v. Carhart (majority opinion by Justice Kennedy), the Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 in a 5-4 decision. http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf
Planned Parenthood v. Casey established three principles that bound the current debate over abortion: 1) Before a fetus is viable, a woman has a right to have an abortion without undue government interference. 2) After viability, the state can restrict abortion as long as the health of the woman is not threatened. 3) At any point during the pregnancy, the state has an interest both in protecting the health of the woman and the life of the fetus.
The Court in Carhart reaffirmed that these principles are compatible and form the basis of abortion jurisprudence. Thus, the question at hand was whether prohibiting partial birth abortion is an undue burden, and whether it furthers the interest the state has in the life of the fetus. Any abortion procedure is designed to take the life of the fetus, but proponents of the law argued that the partial birth procedure was particularly inhumane. The Court accepted the Congressional finding that the more common “Dilation and Extraction” method in which the fetus is dismembered prior to extraction is a viable alternative to a partial-birth abortion.
A discussion of the opinion, and the dissent by Justice Ginsberg, can be found at: http://www.scotusblog.com/movabletype/archives/2007/04/court_rules_att.html
Doctors writing in the New England Journal of Medicine nejm.org) reacted to the ruling by criticizing government involvement in what they think should be a decision made by medical professionals acting the best interest of a particular patient.