Abortion Conundrums


Last month's 5-4 U.S. Supreme Court decision (Gonzales v. Carhart) upholding the Partial Birth Abortion Ban Act of 2003, which prohibits a procedure used each year in three to five thousand late-term abortions, was greeted with predictable outrage by abortion-rights activists and their supporters in the Democratic Party. Many saw the ruling as a step toward overturning Roe v. Wade. Yet like everything having to do with abortion, the Court's decision was more complicated than that.

Much of the initial reaction to the decision was driven by Justice Ruth Bader Ginsburg's fiery dissent to Justice Anthony Kennedy's majority opinion. Ginsburg accused the Court of ignoring its own precedents in Roe and Planned Parenthood v. Casey by upholding a law that banned an abortion procedure without providing an exemption to ensure the health of the woman. In doing so, the majority deferred to the determination made by Congress--one Ginsburg scathingly dismissed--that there was little medical evidence that "partial-birth abortion" is ever necessary to protect a woman's health. At the same time, however, the decision left room for a future challenge to the law should a specific case be brought forward establishing that the procedure is medically necessary to protect a woman's health.

Much of the significance of the ruling may turn on a technical aspect of the law having to do with what are called "facial," as opposed to "as-applied," challenges to the constitutionality of a statute. Historically, the Court has overturned on a "facial" basis most attempts to restrict access to abortion. In Carhart, however, a potentially dramatic, if limited, change has taken place in how the Court approaches abortion regulation. It now appears that the Court is willing to examine restrictions or regulation of abortion on an "as-applied" basis. "The idea," writes Benjamin Wittes in "Winner Takes Some" (New Republic Online), "is that a law that's constitutional most of the time should not be invalidated because one can imagine circumstances in which its enforcement would violate someone's rights."

What this seems to mean is that the Court may permit further regulation. For example, several states have passed laws requiring a pregnant woman to view a sonogram of her fetus before she can have an abortion. Since viewing a sonogram is unlikely to endanger a woman's life or health, or to impose, in Casey's terms, an "undue burden" on her access to abortion, such requirements would probably be judged constitutional in light of Carhart. …

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