On April 18, 2007, the Supreme Court ruled in a 5–4 decision to reinstate a federal law banning so-called “partial-birth” abortion in the cases Gonzales v. Planned Parenthood and Gonzales v. Carhart.  The decision, which overturned the rulings of three appeals courts, upheld the federal “Partial-Birth Abortion Ban Act of 2003,” which prohibits a specific abortion procedure known medically as intact dilation and extraction.  The ruling means that doctors who perform the prohibited abortion procedure may face criminal prosecution, fines, and up to two years in prison.  While the legislation was signed into law by President Bush in 2003, lower court rulings had blocked it from ever taking effect.1 The ruling marks the first time since the 1973 Roe v. Wade decision that the court agreed to a prohibition on specific abortion procedures with no exception for safeguarding women’s health.

Planned Parenthood Federation of America and the American Civil Liberties Union, who brought the case before the court on behalf of the National Abortion Federation, and the Center for Reproductive Rights, who brought the case on behalf of four abortion providers, filed lawsuits alleging that the law is unconstitutional because it lacks an exception for procedures performed to protect the health of the pregnant woman.  In place of a health exception, the law includes a long “findings” section with medical evidence presented during a congressional hearing.  According to supporters of the law, these findings indicate that the procedure banned by the law is never medically necessary.  The American College of Obstetricians and Gynecologists (ACOG), however, has said that the it is increasingly regarded as the safest procedure during the second trimester of pregnancy.

While the ruling may have a direct impact on a relatively small subset of abortions, the decision has broader implications.  The breadth of this abortion ban invites interference in the doctor-patient relationship and opens the possibility for state and federal politicians to severely limit access to abortion and reproductive health care.  

Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, and Antonin Scalia joined Justice Anthony Kennedy in the majority opinion, while Justices Stephen Breyer, John Paul Stevens, and David Souter joined Justice Ruth Bader Ginsburg in the dissent.  Justices Thomas and Scalia filed a concurring opinion, reiterating their view that Roe v. Wade should be overturned.

In the majority opinion, Kennedy wrote that, “The law need not give abortion doctors unfettered choice in the course of their medical practice,” adding that the “medical uncertainty over whether the act’s prohibition creates significant health risks provides a sufficient basis to conclude…that the act does no impose an undue burden.”2 Kennedy also wrote that “the government has a legitimate and substantial interest in preserving and promoting fetal life.” He argued that the ban is in fact good for women, protecting them against terminating their pregnancies by a method they might not fully understand in advance and could regret later: “While we find no reliable data to measure the phenomenon…it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Speaking for the court, Kennedy said that, while the government cannot forbid abortion outright, “it may use its voice and regulatory authority” to deter women from ending pregnancies.  The ban on the procedure will “encourage some women to carry the infant to full term, thus reducing the absolute number” of such abortions, he wrote.3

In her dissenting opinion, Justice Ginsburg wrote that the majority was being paternalistic when expressing concerns about women’s regret over an abortion, adding that the “solution the court approves” is “not to require doctors to inform women adequately of the different procedures they might choose and the risks each entails.  Instead the court shields women by denying them a choice in the matter.”4  The law “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court—and with increasing comprehension of its centrality to women’s lives,” Ginsberg wrote.  The “law saves not a single fetus from destruction, for it targets only a method of performing abortion,” she wrote.5  Ginsberg added that the majority opinion “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by [ACOG.]”6

“This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women’s health and safety,” said Eve Gartner, PPFA deputy director of litigation and law, who argued Gonzales v. Planned Parenthood.  “Today the court took away an important option for doctors who seek to provide the best and safest care to their patients.  This ruling tells women that politicians, not doctors, will make their health care decisions for them.”7

“Make no mistake— today’s ruling takes us perilously close to a complete reversal of Roe v. Wade. And we should assume that this is only the beginning,” said Nancy Northup, president of the Center for Reproductive Rights. “The Justices have shown their cards…In his confirmation hearings before the Senate, Chief Justice Roberts said he believed it is a ‘jolt’ to the legal system when Supreme Court precedents are overturned. Apparently, under some circumstances, he is willing to jolt the legal system, at the expense of women’s health,” Northup added.8

“We strongly believe that decisions about a woman’s health should be made by the woman herself, in consultation with her doctor, and not by politicians or other outside forces,” said Joseph DiNorcia, president of SIECUS. “The current administration, however, has shown time and time again that it is willing to push its own ideology of interference even in the face of overwhelming popular opinion, the best medical science, and common sense,” DiNorcia said, adding that, “Banning a procedure that, at times, is the safest for women is just the latest example of the backward logic this administration and its judicial allies are forcing upon the country.”

In the wake of the decision, Senator Barbara Boxer (D-CA) and Representative Jerrold Nadler (D-NY) introduced the Freedom of Choice Act (FOCA).  FOCA would prohibit the government from interfering with a woman’s right to choose to bear a child or terminate a pregnancy and would restore the reproductive rights recognized in the U.S. Supreme Court’s1973 Roe v. Wade decision, before many legislatures and courts eroded these rights.

SIECUS supports Freedom of Choice Act (FOCA) and encourages you to find out more about this important piece of legislation.  To learn more about FOCA, click here.

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